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August 31 - Newsblog #1
Your Injury Attorneys in the News: Homeowner and Wife Sue over Police Shooting
September 7 - Newsblog #2
Your Injury Attorneys in the News: Homeowner’s Possession of Handgun Legal Under 2nd Amendment
September 14 - Newsblog #3
Your Injury Attorneys in the News: if a Government or Government Agency is at Fault, You Can Sue
September 21 - Newsblog #4
Your Injury Attorneys in the News: Lawsuit Against Police Department Invokes the Civil Rights Act
September 28 - Newsblog #5
Your Injury Attorneys in the News: a Clear Line from the Action – or Inaction – to the Injury
October 12 - Newsblog #6
Your Injury Attorneys in the News: Police Insensitivity Turns Traffic Stop into a Travesty
October 19 - Newsblog #7
Your Injury Attorneys in the News: Police Who Abuse Power Must Be Held Accountable, Law Professor States
October 26 - Newsblog #8
Your Injury Attorneys in the News: Holding Overly Aggressive Police Accountable
November 2 - Newsblog #9
Your Injury Attorneys in the News: Brown Vs. Impd Case About Much More Than Punishment or Money
November 9 - Newsblog #10
Your Injury Attorneys in the News: Improper Medical Diagnosis and Care Resulted in Loss of an Eye
November 16 - Newsblog #11
Your Injury Attorneys in the News: Medical Malpractice Claims Have a Front End and a Back End
November 30 - Newsblog #12
Your Injury Attorneys in the News: Truths About Medical Malpractice
December 7 - Newsblog #13
Your Injury Attorneys in the News: Yes, You Can Sue City Hall
December 14 - Newsblog #14
Your Injury Attorneys in the News: Slip and Fall Changes Two Lives Forever
December 28 - Newsblog #15
In the News: Ramey & Hailey Year in Review
January 4 - Newsblog #16
In the News: Teen’s Sexual Abuse Case Calls Attention to the Problem
January 11 - Newsblog #17
In the News: Parents of Survivor Sue Parents of Shooter
January 18 - Newsblog #18
In the News: Erin Brockovich Teams Up with Indiana Moms
January 25 - Newsblog #19
Your Injury Attorneys in the News: Case Settled in Favor of Catastrophic Slip and Fall Injury Victim
January 31 - Newsblog #20
In the News: Wrongful Death Lawsuit Filed Against Rehab Facility
February 8 - Newsblog #21
In the News: Nurse Arrested in Sexual Abuse Case
February 15 - Newsblog #22
In the News: Running the Clock on Indiana Medical Malpractice
February 22 - Newsblog #23
In the News: to Repeal or Not to Repeal – Indiana Legislators Rule “not”
March 1 - Newsblog #24
In the News: Helping Physicians Keep Helping
March 8 - Newsblog #25
In the News: Parents of Brain-damaged Infant Sue Hospital
March 15 - Newsblog #26
In the News: Owner of Gun Wins Decision
March 22 - Newsblog #27
In the News: Indiana House Passes Long Term Care Protections Bill
April 5 - Newsblog #28
In the News: Slip-and-fall Victim Wins Right to Sue Dollar Tree
April 12 - Newsblog #29
In the News: Inspection Report Shows Vets Harmed at 52 Nursing Homes
April 19 - Newsblog #30
In the News: Sandwich Diversion Causes Fatal Two-semitrailer Crash
April 26 - Newsblog #31
In the News: Does Premises Liability Cover Goose Attacks?
May 10 - Newsblog #32
Two-week-old N.y. Verdict Offers Takeaways for Slip and Fall Victims
May 17 - Newsblog #33
In the News: Barrel Blast Triggers Wrongful Death Lawsuit
May 24 - Newsblog #34
In the News: when a Product Manufacturer is Not at Fault
May 31 - Newsblog #35
In the News – College Doc’s Sexual Abuse of Students Coming to Light
June 7 - Newsblog #36
In the News – One Week, Four Motorcycle Accidents
June 14 - Newsblog #37
List of Troubled Nursing Homes Released
June 21 - Newsblog #38
In the News: Kansas No-caps Ruling Changes Personal Injury Climate
June 28 - Newsblog #39
In the News: Jury Awards $10.5 Million for Pain and Suffering in Birth Injury Case
July 5 - Newsblog #40
In the News: More Indicted in Last Year’s Duck Boat Tragedy
July 17 - Newsblog #41
In the News: Richard Hailey on Litigation Team for Lawsuit Vs. Tesla
July 24 - Newsblog #42
In the News: Malpractice Lawsuit Yields Largest Award in History
August 28 - Newsblog #43
In the News: Trucks V. Passenger Cars – Score 18:116. Everybody Loses
December 4 - Newsblog #44
In the News: High School Chaplain Suspended on Allegations of Sexual Abuse
December 11 - Newsblog #45
In the News: Franklin, Indiana Continues to Face Toxic Waste Problem
December 11 - Newsblog #46
In the News: Franklin, Indiana Continues to Face Toxic Waste Problem
December 18 - Newsblog #47
In the News: Parents of Bus Accident Victim Awarded $20 Million
January 8 - Newsblog #48
In the News: Parents Sue After Daughter’s Brain Damaged in Surgery
January 10 - Newsblog #49
In the News: Trucking Accidents Due to Careless Driving Increase
January 29 - Newsblog #50
In the News: Trucking Accidents Due to Careless Driving Increase
February 19 - Newsblog #51
Indiana Authorities Buy More Time to Prosecute Child Abusers

Medical Malpractice Newsletter

Burden of Proof and "Res Ipsa Loquitur" in Medical Malpractice Cases

Medical malpractice lawsuits are usually based upon a claim that a health care provider was negligent. To establish negligence, the plaintiff must prove the practitioner’s actions fell below the accepted standard of care, i.e., the degree of care a reasonable, similarly qualified health care provider would have provided under the same or similar circumstances. Establishing that a provider’s actions fell below the standard of care often involves the expert testimony of other health care professionals in the same field of medicine.

Frequently patients are unconscious when the negligent act occurs or there is insufficient documentation regarding the health care practitioner’s participation during the medical procedure. When this is the case, it may be difficult to prove negligence, even with the assistance of experts. In such circumstances, some states allow patients to rely on a legal doctrine called “res ipsa loquitur” to establish liability.

Establishing Liability When Few Facts are Available

Res ipsa loquitur,” often referred to simply as “res ipsa,” is Latin for “the thing speaks for itself.” Res ipsa loquitur allows plaintiffs to use circumstantial evidence to infer negligence. The popularity of the doctrine grew significantly following the landmark 1863 English case Byrne v. Boadle. In Byrne, a man had been outside a flour dealer when a barrel of flour fell out of a window and struck him, knocking him unconscious. Although the man was unable to present any direct evidence of negligence, the court invoked res ipsa loquitur and inferred negligence against the flour company based on the surrounding circumstances.

Raising Res Ipsa Loquitur in Medical Malpractice

In the medical malpractice context, if the following elements are established, there is a stronger likelihood that a plaintiff will successfully establish liability under res ipsa loquitur:

  1. Evidence regarding the actual negligent act and cause of injury is unobtainable
  2. The practitioner has superior knowledge or means of obtaining evidence about the cause of the injury
  3. The type of injury does not ordinarily occur in the absence of negligence
  4. The patient was not responsible for the injury
  5. The practitioner was responsible for the patient’s welfare at the time of the injury
  6. The practitioner had exclusive control over the circumstances that led to the injury

Shifting of the Burden of Proof

Under res ipsa loquitur, once the plaintiff presents evidence regarding the existence of the above elements (or those required in the particular jurisdiction), the court instructs the jury to presume that the practitioner was negligent and the burden of proof shifts to the practitioner to prove otherwise. This approach is particularly useful in medical malpractice cases where a surgeon amputates the wrong limb or an instrument is left inside a patient. When the facts establish res ipsa loquitur, the patient need not prove who committed the improper act. Rather, the court instructs the jury to infer that the health care provider was negligent, while the health care provider must prove otherwise.

State Differences in Applicability of Res Ipsa Loquitur

Laws differ among states regarding the applicability of res ipsa loquitur in medical malpractice cases. One particular difference which seems to be a divisive issue is its applicability where expert testimony regarding negligence is also presented. Specifically, some states assert that where expert testimony is used, the doctrine of res ipsa loquitur is unnecessary and inapplicable since the matter at issue is not of common knowledge. (This might be a particularly useful argument where the malpractice at issue involves complex surgical procedures). Other states disagree and hold that res ipsa loquitur evidence should be permitted in conjunction with expert testimony, since the facts and procedures at issue essentially become the common knowledge of the jurors (through the use of such testimony), allowing the jurors to infer negligence.

This issue was addressed in the 1993 Second Circuit Court of Appeals case Connors v. University Associates in Obstetrics and Gynecology, Inc. In Connors, a Vermont patient and her husband brought a claim for medical malpractice, alleging that the treating health care providers negligently performed a surgery, which included a hysteroscopy and a laparoscopy. Along with raising negligence, the plaintiffs also requested that the court instruct the jury regarding res ipsa loquitur.

After the plaintiffs won an $800,000 judgment, the defendants asserted that the court improperly instructed the jury regarding res ipsa loquitur. Specifically, the defendants asserted that where expert testimony is presented, res ipsa loquitur should not be applicable. However, the appellate court ruled that the instruction was proper. In making its decision, the court noted that “it would make little sense for a plaintiff to be denied the res ipsa instruction because expert testimony was needed to bridge the gap between the jury’s common knowledge and the knowledge needed to evaluate the claim.” The court’s analysis also noted that its decision was in line with the Restatement of Torts, a legal treatise heavily relied upon by lawyers and lawmakers.

According to Connors, the following states have chosen to allow res ipsa loquitur evidence in conjunction with expert testimony: California, Hawaii, Illinois, Kansas, Louisiana, Michigan, New Jersey, Ohio, Pennsylvania, Rhode Island, South Dakota, Wisconsin and Washington. States ruling otherwise include: Florida, Idaho, Iowa, Maryland, Massachusetts, Minnesota, North Dakota, Tennessee and Texas.

To ensure the proper applicability of res ipsa loquitur, the judicial interpretations of state statutes must be considered. Such rulings sometimes add limitations or restrictions to a statute’s applicability.

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