Res Ipsa Loquitur
Establishing wrongdoing on the part of a health
care provider is often difficult. It requires the
hiring of experts, in the same field as the health
care professional being charged with misconduct, who
must testify as to what the defendant should have done
under applicable professional standards. Since medical
organizations generally discourage those in the medical
professions from testifying against one another, it is
difficult to find experts who have the integrity to
come forward and testify as to misconduct by one of
their peers. In addition, many insurance companies
providing coverage to health care providers require
that they not testify against other providers who are
insured by the same company. Thus, only with the
assistance of an experienced medical malpractice
attorney can a plaintiff be ensured of obtaining all
of the relevant evidence and proving all of the
requisite elements that will help the plaintiff
recover his or her damages.
Proving malpractice is also difficult because the
defendants are often the ones who write the medical
reports that often form the basis of the suit. Since
they are often the only ones who are present and know
what really occurred when the negligence happened,
and they choose how to describe the event, records
are often not descriptive of what truly happened.
In addition, some health care providers may frame
their reports so as to protect someone guilty of
misconduct.
Fortunately, the law also recognizes that
plaintiffs face certain difficulties in proving
medical negligence, due in no small part to the fact
that they are often not conscious when the negligence
occurs. If a patient injured as the result of a
medical procedure does not know exactly what caused
his or her injury, but it is the type of injury that
would not have occurred without negligence on the
part of his or her health care provider(s), he or she
may invoke a legal doctrine known as "res ipsa
loquitur." Translated, this Latin phrase means "the
thing speaks for itself," and implies that the
plaintiff need only show that a particular result
occurred and would not have occurred but for someone's
negligence.
To invoke this doctrine successfully, a plaintiff
has to show that:
- Evidence of the actual cause of the injury is not
obtainable;
- The injury is not the kind that ordinarily occurs
in the absence of negligence by someone;
- The plaintiff was not responsible for his or her
own injury;
- The defendant, or its employees or agents, had
exclusive control of the instrumentality that caused
the injury; and
- The injury could not have been caused by any
instrumentality other than that over which the
defendant had control.
Once this doctrine is successfully invoked, the
burden is not on the plaintiff to show how the
defendant was negligent, but on the defendant to show
that he or she was not negligent. A classic example of
the type of case in which this doctrine arises is where
a sponge or other medical instrument is left inside a
person following surgery. Typically, a medical report
will not state "Dr. Smith left forceps in patient's
abdomen," and there may be no recorded proof of how
or why the negligence occurred. Yet clearly, a
surgical instrument would not be left in a patient in
the absence of someone's negligence. Also, an
unconscious patient certainly cannot be deemed
responsible for this type of injury, and it would have
been the operating physician and staff who had
exclusive control over the surgical tools.
Thus, the burden falls not on the patient to prove
who left the surgical instrument inside him or her,
but on the individual health care providers to try to
establish that it was not their negligence that
resulted in the injury. If an attending physician,
who is an independent contractor rather than an
employee of a hospital, can demonstrate that he left
the operating room and instructed a nurse, who was a
hospital employee, to remove and account for all
surgical instruments before the patient was closed,
the hospital might be held liable for the negligence
of its employee. In any event, the co-defendants
rather than the plaintiff do the bulk of the
investigation and finger-pointing, which is quite
appropriate given the circumstances.
Conclusion
Medical malpractice cases can be hard to prove.
Fortunately, the doctrine of res ipsa loquitur
provides one mechanism that can help plaintiffs
prove their case by accepting that some circumstances
are in and of themselves evidence of negligence. Also
fortunately, medical malpractice attorneys are skilled
at getting to the heart of the matter, gathering the
relevant evidence, and establishing the plaintiff's
case, ensuring the best possible outcome on the
injured person's behalf.