Challenges in Proving Medical Malpractice – Res Ipsa Loquiter

Proving medical malpractice is notoriously difficult, even in the best of circumstances. The technical, scientific nature of the evidence required to prove a case of medical malpractice fosters a courtroom full of factual uncertainty. In this case, attorneys will use res ipsa loquitor, a theory of liability used to argue that injury X could not have occurred but for a plaintiff doing action A. The purpose of the res ipsa doctrine is to create, at minimum, an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Res ipsa loquitur (res ipsa) is a Latin phrase meaning “the thing speaks for itself.” In the legal realm, res ipsa is a theory of liability used to argue that injury X could not have occurred but for a plaintiff doing action A. It is a fancy way of saying “there is simply no other way this injury could have happened.” The res ipsa doctrine, while technically available in any type of case is most frequently employed in the area of medical malpractice.

The Four Components of Res Ipsa

The purpose of the res ipsa doctrine is to create, at minimum, an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.

Use of the res ipsa doctrine generally requires that:

  • (1) the event must be of the type that ordinarily does not occur in the absence of someone’s negligence;
  • (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;
  • (3) it cannot have been due to any voluntary, contributory action on the part of the plaintiff; and
  • (4) evidence of the true reason behind or explanation of the event must be more accessible to the defendant than to the plaintiff.

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Shifting the Burden of Proof From Plaintiff to Defendant

Res ipsa loquitor can be an enormous asset to a plaintiff, because it effectively shifts the burden of proof from plaintiff to defendant. Medical malpractice cases are notoriously difficult to prove even in the best of circumstances.

The technical, scientific nature of the evidence required to prove a case of malpractice fosters a litigation environment full of factual uncertainty. And the hit-or-miss nature of the practice of medicine itself contributes to this morass.

Medical malpractice is not always a case of a doctor botching a surgery, prescribing the wrong medication or recommending an improper treatment. While still difficult to prove, these types of cases are more focused and discernible. However, in cases where a patient goes in for treatment and comes out in worse shape, without knowing why; or there is simply something wrong but no obvious act or ommission, res ipsa is invoked, effectively shifting the burden of proof from plaintiff to defendant. Instead of the plaintiff having to prove why a doctor committed malpractice, the doctor now has to prove that he or she did not.

Additional Requirement: The Doctor & Supporting Evidence

Using the four requirements above, a plaintiff must successfully prove that a doctor owed them a duty to act within the standard of care, that the standard of care was breached, that the plaintiff themselves didn’t contribute or cause the injury, and that the doctor is the person with the most access to the evidence supporting the injury. This last prong is very important as it can be an effective way of dealing with doctors who are less than honest in keeping records. In general, there is little dispute that a doctor controls what goes in—or what is left out of—a patient’s medical records. Situations arise where doctors conveniently forget to document a complication, or record that informed consent was obtained for a treatment when it was not. Res ipsa allows a defendant to say, “Look, I know what the records say, but I’m telling you they’re wrong and that I’m injured, and unless this doctor can prove otherwise, assume that he was negligent.” It’s a valuable tool that shifts not only the burden of proof, but also the position of power in the case.

Example of a Res Ipsa Case

An example of a res ipsa case is one where a surgeon leaves a medical instrument in a patient’s body during surgery. Imagine a patient undergoing an appendectomy. The appendix is successfully removed, but the patient continues to complain of abdominal pain. The patient then discovers that a clamp was left in her abdomen. Res ipsa allows the patient to simply state that the doctor was clearly negligent because he had a duty to correctly perform the surgery, he didn’t do so because he left an instrument inside the patient, the patient certainly didn’t put the clamp there, and even though the instrument count after surgery accounted for all of the instruments—it was clearly incorrect. That plaintiff can invoke res ipsa and very likely win the case.

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Follow-up with an Attorney

Res ipsa loquitor can be a useful legal tool in the right circumstances. It does not always apply, and should only be invoked when there is a likelihood of success. Like all legal doctrines, the applicability and specific nuances of the doctrine can vary from jurisdiction to jurisdiction. Consult an attorney if you think you are a victim of malpractice, and your attorney should be able to tell you whether a res ipsa argument is available.

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