Medical Malpractice and Res Ipsa Loquitur: An Explanation

John Fisher
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Stopping Medical Injustice

This week I have written some more legal posts regarding different types of medical malpractice in emergency rooms and additional providers who can be sued for medical malpractice like nurses.  Now I just want to talk about theories or concepts of litigation.  There are multiple different theories or concepts a medical malpractice claim could be brought against a health care providers.  One that I really haven’t spoken about—and which is not really that common in medical malpractice—is the theory of res ipsa loquitur.

In Latin, res ipsa loquitur means “the thing speaks for itself.”  What is nice about res ipsa is that the plaintiff can present the case in chief against the defendant doctor through purely circumstantial evidence.  That is because res ipsa is that it carries the presumption that the injuries sustained had to have been a result of negligence on some part of the doctor, thus the duty of care was breached.  For example, res ipsa claims are typically used in airplane crashes where the weather was fine and there are no reports of malfunctioning. 

To determine a res ipsa claim, there are three elements.  The first element is that the accident or injury is the kind which ordinarily does NOT occur in the absence of negligence.  This element is probably the most important one.  The second element is that the accident or injury be caused by an instrument or agency under the EXCLUSIVE control of the defendant.  This element is the trickiest and usually is where res ipsa fails.  Finally, the third element is that the plaintiff did not contribute in any way to the accident or injury.  If these elements are met, then the plaintiff can proceed with a res ipsa claim.  These elements are provided for in the Restatement of Torts which is the guidepost to the legislature and judges when an issue arises in court that there is no established law on yet.

But you might ask—when does this actually happen in medical malpractice claims?  There cannot be just an injury in the case.  There actually needs to be an injury which has been caused that would not have happened in the absence of negligence by the defendant.  So what are some examples?

One common example is when a surgical sponge is left in a patient’s body following a procedure.  Other cases had also applied res ipsa when a tissue clip was also left inside of a patient, a pretty big six-inch catheter tube left in a patient’s chest, and an even larger eight-and-a-half inch piece of wire in a patient’s liver.  These are all called foreign object cases and are undoubtedly the most common types of res ipsa claims.  Other cases include leaving a broken piece of a scalpel blade in a patient, leaving the tip of a broken instrument in a patient after an operation, and failing to timely stop a penrose drain (this is a surgical device to drain fluid from a wound and if left in, could cause infection quickly).

But the bottom line about this post should be that you—the patient—should not determine whether your case is a res ipsa case or not.  More importantly, in general you should not determine whether or not you have a medical malpractice claim.  If you believe you might have been harmed by a health care provider’s actions, PLEASE reach out and speak with an experienced attorney.

What do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] .  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com
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