Is a Doctor's Negligence Ever Automatic In a Medical Malpractice Case?

Even when you're confident that you have a viable medical malpractice claim, it's challenging to prove that a health care provider committed medical negligence. A complex intersection of medical and legal issues is often at the center of these claims. A health care provider's negligence is never "automatic," but in some situations, a legal concept known as "res ipsa loquitur" —a Latin phrase meaning "the thing speaks for itself"—may make it easier for some patients.

In this article, we'll discuss how res ipsa loquitur works within the framework of a medical malpractice case.

Proving Fault In Medical Malpractice Cases

Establishing wrongdoing on the part of a health care provider usually requires the hiring of expert medical witnesses to testify about the applicable medical standard of care and how the medical professional (the "defendant") fell short of that standard.

Winning a medical malpractice case is a challenge because the defendants are often the ones who made the findings and wrote the summaries and observations that make up the bulk of the patient's medical records. And since these defendants are often the only ones who were present when the alleged medical negligence happened, even the most well-trained and knowledgeable expert medical witnesses will have their hands full in examining all the evidence, figuring out what really happened in terms of the provision of care to the patient, and then persuading the jury as to what should have happened under the circumstances.

What Is Res Ipsa Loquitur?

Fortunately, the law recognizes the challenges of proving medical malpractice, and the concept of "res ipsa loquitur" can help tip the balance more in the patient's favor when something seems to have gone wrong in the health care setting.

As the Latin translation of res ipsa loquitur ("the thing speaks for itself") implies, plaintiffs relying on this rule must show that:

• the injury was of a type that doesn't typically happen without negligence
• the defendant, or its employees or agents (i.e. hospital employees or staff), had exclusive control of the instrumentality that caused the injury, and
• the plaintiff didn't contribute to the cause of the injury.

An Example of Res Ipsa Loquitur

Once this doctrine is successfully invoked in any kind of medical malpractice case, the burden is no longer on patients to show how defendants were negligent, but on defendants to show that they were not negligent.

A classic example of the type of case in which res ipsa loquitur arises is where a sponge or other medical instrument is left inside a person after surgery. Typically, records of the surgery will not include a statement such as "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. So, res ipsa loquitur would almost certainly apply here.

Who Gets the Blame?

So, continuing with the example from the last section, the burden falls not on the patient to prove who left the instrument behind during surgery, but on the medical professionals to show that it wasn't their negligence that caused the harm.

If an attending physician, who is an independent contractor rather than an employee of a hospital, can demonstrate that she left the operating room and instructed a nurse, who was a hospital employee, to remove and account for all surgical instruments before the surgical area was closed, the hospital might be held liable for the negligence of its employee, the nurse.

In any event, the co-defendants (rather than the patient) do the bulk of the investigation and the finger-pointing once res ipsa loquitur is successfully invoked.

Talk to a Medical Malpractice Lawyer

Medical malpractice cases are complex, even when the malpractice seems totally obvious. To learn more about the potential strengths and weaknesses of your own medical malpractice case, talk to a medical malpractice lawyer.

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