Medical Malpractice

What is 'Res Ipsa Loquitur' in a Medical Malpractice Case?

By Carole Bosch, Attorney
The "res ipsa loquitur" rule is often invoked in medical negligence cases where a person is injured while sedated.

In different kinds of civil cases where one party is alleging that the other caused some type of harm, res ipsa loquitur ("the thing speaks for itself") is a rule that may be used where the injured party has no direct evidence of how the injury occurred. The rule is particularly apt in medical negligence cases, because an unconscious or sedated patient is almost always at a loss when it comes to testifying about what happened.

When Does Res Ipsa Loquitur Apply to a Medical Malpractice Case?

In a medical negligence case, res ipsa loquitur will apply if the injured patient proves that:

  • the harm ordinarily would not have happened unless someone was negligent
  • the harm occurred while the injured party was under the care and control of the health care provider, and
  • the injured patient did not contribute to the harm.

Where res ipsa loquitur applies, the jury can presume that the health care provider was negligent without requiring further proof from the injured party. It then falls on the provider to disprove any wrongdoing. (Learn more about Proving Medical Malpractice.)

Let’s address each of these three elements in the context of a medical negligence case.

The Harm Ordinarily Would Not Have Happened Unless Someone Was Negligent

In egregious cases where surgical instruments are left in the body, or the wrong limb is operated on, jurors will generally have no trouble finding that the harm would not have happened without negligence, and res ipsa loquitur typically applies. However, in cases involving more complex facts, such as misuse of surgical instruments or injury to surrounding organs during surgery, common knowledge may not suffice to determine whether the harm ordinarily would not have happened. Often, the injured party will call on experts to assist jurors.

Not all states allow expert testimony to enable jurors to determine whether there had to have been negligence. In some states, the courts have ruled that if the matter at issue is not within common knowledge, res ipsa loquitur is inapplicable and the injured party must prove that the relevant standard of care was breached, as in any other medical negligence case. The majority of states, however, permit expert testimony to help jurors acquire the common knowledge necessary to infer negligence.

More: Do I Have a Medical Malpractice Case?

The Harm Occurred While the Injured Party Was Under the Care and Control of the Health Care Provider

To satisfy the second element of res ipsa loquitur, the injured party must prove that the injury was caused by an agency or instrumentality within the exclusive control of the health care provider. In cases involving surgery, proof of exclusive control is seldom an issue.

However, there typically is a team of surgeons, nurses, anesthesiologists, and surgical technologists present in the surgical room, or participating in the care of a patient. Although courts generally apply res ipsa loquitur against all individuals with concurrent control over what's going on in the operating room, some courts have denied application of res ipsa loquitur where the injured party failed to demonstrate that the defendant -- and not another health care provider -- had exclusive control of the injury-causing "agency or instrumentality."

For instance, during a surgery, one physician inserted drains, and another physician failed to remove them. The court refused to apply res ipsa loquitur against the physician who inserted the drains, although he was present in the operating room, because no evidence of his specific wrongdoing was presented.

The Injured Party Did Not Contribute to the Harm

Generally, in surgery or other medical procedures, the injured patient bears no fault by virtue of the circumstances. But where there may be multiple possible causes of injury, some of which could implicate the injured patient him/herself, courts have generally held that negligence on the part of the health care provider need not be the only explanation, but the most probable one, in order for res ipsa loquitur to apply.

For instance, where a party suffered a broken jaw during a car accident, underwent surgery under general anesthesia, and woke up with severe brain damage, should the injured party be entitled to a res ipsa loquitur instruction relating to the brain damage? One court allowed res ipsa loquitur although there remained a possibility that the brain damage occurred during the accident.

If you think you've been injured by a health care provider's negligence, it may be time to discuss your situation with an experienced attorney. Learn more about Selecting a Good Medical Malpractice Lawyer.

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