Establishing a health care provider's wrongdoing is never easy, but a legal concept known as "res ipsa loquitur" -- a Latin phrase which means "the thing speaks for itself" -- may make it easier for some medical malpractice plaintiffs.

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

Negligence and Fault in Medical Malpractice Cases

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of expert medical witnesses (usually 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 the applicable medical standard of care.

Proving negligence is particularly difficult in a medical malpractice case 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 the defendant is often the only one who was present and knew what really occurred when the alleged medical negligence happened, even the most well-trained and knowledgeable expert medical witness will have his or her 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 that plaintiffs face certain difficulties in proving medical negligence. And the concept of "res ipsa loquitur" can help tip the balance more in the plaintiff’s favor.

Here's how it works:

• If a patient is injured as the result of a medical procedure, and
• the patient 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 the health care provider(s)

… then the patient 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 (note: we’ll cut through some of this legalese in the next section).

Invoking Res Ipsa Loquitur

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 "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 likely apply here.

Who Gets the Blame?

So, continuing on with the example from the last section, 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 surgical area 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 the finger-pointing.

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