What Is Res Ipsa Loquitur And How Does It Apply In Surgery Cases


Medical malpractice is a type of personal injury case asserting the professional malpractice against a health care provider.  This can be asserted against a wide gamut of health care providers, including nurses, pharmacists, physician assistants, dental hygienists, and of physicians.

Most instances when we think about medical malpractice we think about surgeons and surgical errors.  While there is an inherent difficultly in all medical malpractice cases to prove negligence, particularly because the defendant automatically qualifies as an expert, surgery cases are even more difficult because the victim is usually under anesthesia and cannot tell his or her side of the story.

But there are tools for your experienced Kingston medical malpractice attorney to use to assist with this problem.  It is called the doctrine of res ipsa loquitur, and it is Latin for “the thing speaks for itself.  It allows a finding of an inference of negligence in certain circumstances.

To apply this doctrine, there are three elements which must be met.  These are 1) the defendant(s) was in exclusive control of the instrumentality or event, 2) this event (malpractice) does not occur without negligence, and 3) the victim did not cause or contribute to the accident.

For a surgery case, the most difficult element to proof is the second one.  This is because, when you bring a medical malpractice claim for a negligent surgery, you will also sue the surgeon, the physician assistant, the anesthesiologist, the hospital, and any other providers.  This means that all the providers were in exclusive control of the victim during the entire event, the surgery.  The third element is also easily met because the victim is under the effect of anesthesia, thus cannot possibly contribute to the injury that occurs during surgery.

The second element requires a medical expert to show that this surgical error was not a routine risk of the surgery, but rather this surgery error was something that does not occur unless someone committed malpractice.  This takes an expert to review the medical records, research with learned treatises, and use his or her education and knowledge as a surgeon to opine that what happened was negligent and should not have occurred.

Thus, it is important to have an experienced Kingston medical malpractice attorney who knows the law and how to wield this doctrine as an effective tool, but also a resourceful medical malpractice attorney who will be able to retain some of the best, most experienced, and most convincing medical experts.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  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.