John Fry underwent a surgical procedure to replace his left hip.

The procedure was going to use a new type of ball joint and Dr.

Bake was to perform the procedure. During the operation a

representative of the medical device company, (Cook ortho)

Mike Brown, that manufactured the ball socket, was present to

assist Dr. Bake on the mechanics of using the new device. After

opening up the left hip and while removing the original hip

bone a small piece on the original bone broke off. Once Dr.

Bake thought the original bone was cleared the representative

of the device company, Mike Brown instructed Dr. Bake on how

the new ball joint was inserted during all the trials. After

considerable effort by Dr. Bake and Brown, to hammer in the

ball, it was fitted into the hip socket. A month later, after PT

and normal healing time, Mr. Fry was experiencing extensive

pain all the way down his left leg. He went to Dr. Bake who

contacted Brown to see if others with the device were having

issues. Brown said they have had 35 operations and no issues.

Dr. Bake said to Fry just scar tissue. After two months, Fry had

even more pain, returned to Dr. Bake who called Brown again

and same answer, no problems. Dr. Bake ordered an MRI and

the result showed a bone sliver in the hip area had pierced the

nerves to the leg and the ball would have to be removed to get

the bone sliver out. Mr. Fry comes to the law firm where you

are the medical consultant. As the medical consultant, what would you advise concerning the negligence of the hospital,

Cook Ortho, Mr. Brown and Dr. Bake?

Can Fry prove negligence against hospital, or Bake and Brown

by apply the rules for liability based upon violation of the duty

owed Mr Fry by each of them. If not.....

.....Can the lawyers argue "res ipsa" to allow Fry to expand the

case against all the defendants?

Remember we are just looking to see in this first case if the

elements of negligence (malpractice) have been met-(duty,

violation of duty, reasonable standard, foreseeability) by Mr.

Fry against the defendants. Problem for Mr. Fry is -he can't

identify if Dr. Bake messed up, Mr. Brown and ortho had

violated the implied warranty or someone in the hospital did

something. So, what you do next islook to apply "res ipsa"

and use the case law in the readings to support your decision.