Res Ipsa Loquitor
Res ipsa loquitor is a Latin phrase that means “the thing speaks for itself.” Used in a legal context, it is the principle that a plaintiff doesn’t have to do more than show a certain result occurred in order to prove negligence. The key is that this occurrence is so outrageous, that it could not have taken place but for somebody’s negligence.
Proving Medical Malpractice
When something has gone wrong regarding medical treatment, it can be particularly difficult to prove any sort of negligence or fault on the part of a health care provider. First of all, all the medical documentation is written by the very people who may be responsible for the harm. As potential defendants, medical professionals may well be able to describe all the relevant events and information in a way that is most favorable to them.
Trying to find experts, who by definition must be part of the same profession as the defendant, who are willing to testify against their colleagues and present an alternative interpretation of those medical records can be exceedingly difficult. Indeed, in order to keep their own medical malpractice coverage, a health care provider’s insurer may require that the provider not testify against another one of the company’s insured.
Finally, the patient is highly unlikely to be able to identify the point where the negligence or malpractice occurred, as the patient may have been sedated or otherwise unaware during the procedure. Even if the patient is fully cognizant during the procedure, as a lay person, they may not be able to specify what exactly went wrong. The patient can only testify as to the harm that has occurred to him or her, not how that harm occurred.
How Res Ipsa Loquitor Helps
Fortunately, the law provides a valuable tool for those who suspect their injuries are due to medical negligence or malpractice. The principle of res ipsa loquitor, “the thing speaks for itself,” can be used to shift the burden of proof from the plaintiff on to the defendant. In order to use this principle successfully, the plaintiff must show:
- There is no available evidence as to how the injury actually occurred
- The injury isn’t the sort that would normally happen without some sort of negligence
- The plaintiff isn’t responsible for the injury
- The defendant had exclusive control over the instrumentality that caused the injury
- The injury could only have been caused by the instrumentality that was under the defendant’s exclusive control
When a plaintiff can successfully invoke res ipsa loquitor, he or she is no longer burdened with proving the medical professional was negligent. The burden now shifts to the medical professional to prove that they, including all of their employees and agents, were not negligent.