Res Ipsa Loquitur

In an ordinary medical malpractice case, the fact that a patient sustained an injury does not in and by itself create a presumption that the physician was negligent. In order to succeed, the patient has to prove, among other things, that it was the physician's treatment of the patient that caused the injury.

When a case is tried on a theory of res ipsa loquitur, the circumstantial evidence is so overwhelming that it eliminates other possible causes of the patient's injury besides the physician's negligence. Res ipsa loquitur, translated as "the thing speaks for itself," is a theory of assigning liability that creates an inference of negligence based on the specific circumstances of a person's injury. As applied to medical malpractice actions, it allows the obviousness of a physician's negligence to create a presumption that he or she treated the patient in a negligent manner. However, the presumption of negligence is not a finding that the physician was negligent. Instead, the presumption shifts the burden from the patient to the physician to show that his handling of the patient was not the cause of the patient's injury.

To create the presumption of negligence on a res ipsa theory, the patient must produce evidence to prove all three of the elements of a res ipsa claim. First, he must show that his type of injury just does not occur without a physician's negligence. The doctrine normally excuses the patient from having to provide an expert opinion on the physician's duty of care and his breach of that duty. It must be within the common knowledge and understanding of ordinary people or experts that the injury could not have occurred without the physician's negligence. The injury cannot be of a type that is an inherent risk of the treatment itself. Second, the patient must show that the physician was in control of whatever caused the injury. Finally, the patient's conduct cannot in any way have caused the injury.

The doctrine of res ipsa loquitur would not be an appropriate legal theory when the patient's claim is that a treatment was unsuccessful or that he got poor results from the treatment. In that situation, it is not within the common experience that the injury would not have occurred if the physician had used reasonable care. Res ipsa would also not succeed in a case where a jury could reasonably infer that the patient's injuries were caused by factors other than the physician's negligence,

Some states have passed laws that specifically require a patient in a medical malpractice action to produce expert testimony on the standard of care to be used by a physician. In those jurisdictions, the theory of res ipsa loquitur would not be applicable.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.