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:
- Evidence regarding the actual negligent act and cause of injury is unobtainable
- The practitioner has superior knowledge or means of obtaining evidence about the cause of the injury
- The type of injury does not ordinarily occur in the absence of negligence
- The patient was not responsible for the injury
- The practitioner was responsible for the patient’s welfare at the time of the injury
- 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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