Friday, January 31, 2014


1.  Evidence 
2.  Proving Negligence
3.  Expert Witness

Res ipsa loquitur [the thing speaks for itself] is a legal doctrine that can sometimes be used to establish negligence even when direct proof of negligence isn't available if the injury is such that it could not have occurred in the absence of some negligence on the part of the person in control of the means of injury.

In some jurisdictions, res ipsa loquitur can be used in a medical malpractice case even if the usual requirement for an expert witness is not met.   Usually the injury itself is sufficient evidence of negligence in res ipsa loquitur cases.

2/18/13  The Daily Mail has reported that the NHS has paid one million pounds in damages because surgeons have removed the wrong testicle from patients.

The co-director of Patient Concern reportedly said:

'It is amazing that surgeons don't always take enough care to guarantee that they are removing the correct testicle.'

Indeed.  It does seem surprising that the surgeon would not ask himself, "Am I sure I am cutting off the correct testicle?" before reaching for the scissors.  There are only two of them; how hard can it be to sort them out?

The Daily Mail article is here 

An actual court case best illustrates the doctrine res ipsa loquitur:

"Plaintiff underwent a total right knee replacement, or arthoplasty, on May 11, 1995 at Jefferson Memorial Hospital in Festus, Missouri. The operation was performed by Dr. Koreckij while Plaintiff was under general anesthesia. Upon awaking from the anesthesia, Plaintiff immediately experienced pain in her right hand, right arm and right shoulder. Plaintiff sued Defendants for medical malpractice.  Because Plaintiff was unable to identify specific acts of negligence, she proceeded under the doctrine of res ipsa loquitur. Defendants moved for summary judgment, which the trial court granted because there was no expert testimony to show Defendants' specific injury-causing act and thus it would be impossible for laymen to determine from common knowledge and experience that Plaintiff's injury would not have occurred but for Defendants' negligence.

Plaintiff filed this timely appeal. Both of "Plaintiff's points on appeal allege that .the trial court erred in sustaining Defendants' summary judgment motions in this res ipsa medical malpractice case.  We agree.

" In order to invoke the doctrine of res ipsa loquitur, a plaintiff must demonstrate:
(1) the occurrence resulting in injury does not ordinarily happen in the absence of negligence;
(2) the instrumentalities that caused the injury are under the care and management of the defendant; and
(3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence. Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo.banc 1983)."

As a general rule res ipsa loquitur may be available to a Plaintiff if:

1.  The accident is of a type that does not occur unless there has been negligence somewhere.

2.  The Defendant has exclusive control of the agent that caused the accident.

3.  There is no evidence that the Plaintiff contributed to the accident.

4.  No other evidence of the cause of the accident is available.

Here is a comment on res ipsa loquitur:

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