Cangelosi v. Our Lady of the Lake Regional Medical Center

WATKINS, Judge.

This appeal presents the question of whether or not a refusal to give an instruction on res ipsa loquitur in a medical malpractice case usurps the province of the jury. After all the evidence was presented, the trial judge considered the evidence and made a determination that the doctrine was not applicable. The action of the trial *91judge was pursuant to the mandate of LSA-R.S. 9:2794(C).

We agree with appellants that the statute operates to establish a dichotomous decision-making process: first, the trial judge; then, the jury. But appellants’ objection to the process belongs in…