Res Ipsa Loquitur
The Latin phrase "res ipsa loquitur" means "the thing speaks for itself". This legal doctrine allows a plaintiff to establish negligence by showing that a result did occur and would not have occurred without negligence. This allows plaintiffs to pursue negligence claims even when they are unaware of negligence at the time. Plaintiffs can invoke res ipsa loquitur when they are aware of an injury, even when they do not know exactly what action by a medical practitioner led to that injury.
Invoking this doctrine and establishing negligence or other malpractice can be very difficult. The plaintiff must get advice from an expert who can establish whether malpractice occurred and then testify to that effect. Medical professionals can be reluctant to testify against each other. In many cases, insurance companies do not allow providers to testify against other providers insured by them. Finally, records can be falsified or rephrased to support a provider's account of an event. The assistance of an experienced attorney can be absolutely vital in getting enough evidence and testimony to successfully claim damages.
Res ipsa loquitur is an important defense against these problems. To successfully invoke res ipsa loquitur, the plaintiff must demonstrate the following:
- The plaintiff did not cause the injury
- The actual cause cannot be proven
- The injury does not usually occur without negligence
- The defendant was in control of the events or instruments that caused the injury
- The injury could not have been caused without those events or instruments.
The burden is then not on the plaintiff to prove negligence, but on the defendant to prove that they were not negligent. As an example, consider a plaintiff who had a medical instrument left inside them after surgery. There is no recorded proof of this event, and a medical report would not describe when and how this happened, but it is obvious that the surgical team was responsible for this accident. It is therefore the responsibility of an individual defendant to show that they were not personally negligent and caused the accident.
This doctrine lowers some of the barriers to a successful medical malpractice suit, but they are still difficult to pursue. Consulting a skilled medical malpractice lawyer can be your best chance to gather evidence, establish your argument, and secure the best possible outcome.