In a medical malpractice case, the plaintiff is required to prove the defendant's negligence. However, there are some cases where you don't have to prove this because the occurrence of the accident, in itself, implies negligence. This is known as the principle of "res ipsa loquitur," a Latin phrase with the literal meaning of "the thing speaks for itself." There are three elements you need to prove to succeed with the "res ipsa loquitur" claim:
The Accident Cannot Occur Without Negligence
The first element is to prove that your injury is one of those accidents that cannot just occur without another person's negligence. For example, if a surgeon is operating on your lungs, then you cannot incur an injury to your kidney without somebody's negligence because it wasn't part of the surgical procedure. It may be that the surgeon was drunk and operated on the wrong organ, or someone confused your medical records with another patient's; the point is that such an injury cannot occur without someone being negligent.
Nothing Else Could Have Caused the Injury
If you want an automatic admission that the defendant's negligence injured you, then you have to be certain nobody and nothing else could have caused the injury. For example, it may be negligent of a surgeon to operate on you while drunk, but it isn't a case of "res ipsa loquitur" if his or her drunkenness doesn't injure you. Therefore, if your kidney injury occurred because an assisting nurse confused your medical records, then you can't execute this principle against the surgeon. That can only happen if you can prove that nothing or nobody else caused your injury.
The Defendant Owed You a Duty of Care
The third element you need to prove is that the defendant owed you a duty of care, which he or she did not execute. For example, an operating surgeon is expected to give you the standard of care that any reasonably competent surgeon would do in the same situation. He or she is supposed to take appropriate remedial measures when something goes wrong. However, an observer doesn't owe you the same duty of care. Therefore, you can't sue an observer (such as a medical student) and expect the court to use the "res ipsa loquitur" principle on him or her even if he or she noticed an anomaly during the operation, but did not take measures to remedy it.
Establishing a res ipsa loquitur doesn't mean that you are home free with your injury case. The defendant can still rebut your claims, so you still need a professional attorney to handle your claim.
For more information, contact Stapleton Law Offices or a similar firm.Share
29 October 2015
When I was injured in a slip and fall accident a few years ago, my family and friends had a hard time relating to the things I was going through. While some people thought that my decision to file a lawsuit was frivolous, others were under the impression that I would walk away as a millionaire. Their lack of personal experience with this type of legal problem left me feeling alone during one of the most difficult times in my life. That is why I decided to start this blog so that accident victims from all over would have somewhere to come to get the information and support that they need. I truly hope that this page can be that place for you.