only if it was a matter of common knowledge among laymen that the patient's injury ordinarily would not have occurred without negligence on someone's part.' There are certain cases of which it may be said res ipsa loquitur—a doctrine of presumptive negligence—and this seems one of them. Malpractice Issues in Radiology: Res Ipsa Loquitur. The principle of res ipsa loquitur is, in essence, an evidential principle, which, in certain cases, allows the court to draw an inference of negligence. In medical malpractice cases, however, the common knowledge and everyday experience of lay jurors may be inadequate to support this inference [17]. Many lawyers and attorneys find it easier to refer to res ipsa loquitur as res ips or res ipsa as shorthand.. It does not follow that because the logs fell off the car, they were negligently put on. Before delving into the legal aspects of res ipsa, the thrust of this article, a brief discussion of postmyelographic meningitis is in order. Strict liability abandons a conduct-based approach, instead allowing a plaintiff to recover by show-ing that a product was defective and unreasonably dangerous when it left the manufacturer. As he was passing a shop owned by Mr. Boadle, a dealer of flour, a barrel of flour suddenly fell on Mr. Byrne from a window above the shop. Originally, the expression res ipsa loquitur was applied to a case where usury was apparent on the face of an instru-ment sued upon., In 1863, the phrase was first used in its present application in Byrne v. Boadle4 where the plaintiff was injured by a barrel which fell from the defendant's window. In this case, the barrel had rolled out of the warehouse and fallen on the plaintiff; how could he possibly ascertain from what cause it occurred? Res ipsa loquitur, on the other hand, allows juries to infer negligence from the circumstances surrounding the injury. Res Ipsa Loquitur. A baby girl was delivered by an apparently uneventful cesarean delivery in a suburban Chicago hospital. A very narrow exception to the requirement of expert testimony in medical malpractice actions applies where the matter is so simple or lack of skill or care so obvious as to be within the range of experience and comprehension of even nonprofessional persons, conceptualized as the doctrine of res ipsa loquitur. Where the injury could have happened in consequence of an accident unmixed with negligence and where it could equally have happened as the result of negligence but there is no evidence to show negligence, the plaintiff fails to sustain his case.... Negligence in the concrete is either positive or negative. The article referred to one judge's observations [16]: Regardless of the merits of the plaintiff's case, physicians who are members of medical societies flock to the defense of their fellow members charged with malpractice and the plaintiff is relegated for his expert testimony to the occasional lone wolf or heroic soul, who for the sake of truth and justice has the courage to run the risk of ostracism by his fellow practitioners and the cancelation of his professional liability insurance policy. As noted previously, the jury's determination as to whether the res ipsa doctrine should apply in a given case may be based on expert testimony. In a minority of states, a plaintiff's expert witness is required in virtually all cases. Accordingly, the plaintiff failed to establish his case of medical malpractice, and trial court committed error in permitting this matter to go to the jury without expert testimony. As did the 1894 Maryland Supreme Court dissenting opinion [12] and the William Howard Taft 1897 decision [13], the Pennsylvania court raised serious concerns that cavalier use of the res ipsa doctrine could subject physicians to liability simply on the basis of failure to cure or the occurrence of any complication, thus undermining the integrity of the profession [21]: Public policy reasons exist for protecting physicians by limiting res ipsa loquitur in medical cases, which must be weighed against the public policy concerns of protecting the general public. Get Book. The plaintiff appealed, and in a split decision, the Maryland Appellate Court reversed the jury verdict [12]: If the cross-ties had been properly loaded, there existed no reasonable probability of their falling off. 6 . They included droplet contamination of the field or instruments by the oropharyngeal flora of the operator, contamination of the commercially prepared spinal-puncture equipment, contamination of the contrast medium, cutaneous colonization due to incomplete disinfection of the skin, and inoculation into the spinal fluid by the spinal needle. There are certain cases of which it may be said res ipsa loquitur—a doctrine of presumptive negligence—and this seems one of them. The Facts Speak for Themselves... ONLINE TRAINING. The Illinois Appellate Court upheld the lower court's dismissal of the lawsuit, stating in part [1]: Res ipsa loquitur permits a trier of fact to draw an inference of negligence if plaintiff demonstrates he or she was injured in an occurrence that ordinarily does not happen in the absence of negligence by an agency or instrumentality within the defendant's exclusive control. For example, in a Kentucky case in which a dentist who had extracted a tooth failed to take an x-ray that would have revealed that part of the tooth had not been removed, the court permitted the application of res ipsa because that particular method of diagnosis had become a matter of common knowledge [15]. Res Ipsa Loquitur is a legal theory that can help individuals recover the compensation they deserve after an injury caused by another person. In 1863, while the Civil War was raging on the American side of the Atlantic Ocean, a little-noticed incident occurred on the English side of the Atlantic that was destined to herald a new legal doctrine into the common law. Notes: Hi everyone! The plaintiff filed a lawsuit against the railroad, claiming negligence. The patient later filed a medical malpractice lawsuit against the interventional radiologist under the theory of res ipsa loquitur (res ipsa), alleging that because “the entire myelogram procedure was under exclusive control of the defendant–radiologist” and because “contracting meningitis with S. bovis is a rare medical result that does not occur in the absence of medical negligence,” the defendant–radiologist's conduct fell below the standard of care. It was the duty of the defendant to have carefully loaded said cross-ties upon its cars, and it was equally its duty to have exercised reasonable care in seeing that its train was transported in such condition as to avoid all reasonable probability of injury. Over the next 20 years, appeals courts in Wisconsin, Massachusetts, Louisiana, Pennsylvania, and California affirmed the doctrine of res ipsa in other cases involving personal injury. If the defendant has thus satisfied the trier of facts, this presumption is destroyed. Stated the learned judge [10]: There are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down a rule that in no case can presumption of negligence arise from an accident. The appeals court, headed by a chief judge named Baron Pollock, reinstated the lawsuit and for the first time in the context of personal injury litigation used the phrase, res ipsa loquitur. A Harvard Law Review article suggested that this tendency resulted from what many judges saw as a reluctance—indeed a refusal—of physicians to testify against their brethren: the so-called conspiracy of silence. The case involved a Ms. Nellie Ewing who, having developed cataracts in both eyes, underwent corrective surgery by Dr. Goode, “a highly-educated and experienced physician and oculist of the city, now engaged solely in treating diseases of the eye.” Postoperatively, the patient developed glaucoma and eventually had to undergo removal of the affected eye. By the time his family brought the patient to the hospital's emergency department, he was unresponsive. A fundamental component of the res ipsa doctrine is that the act complained of speaks for itself. In medical malpractice cases, the courts are generally reluctant to apply res ipsa in lawsuits involving error in diagnosis or the choice of a method of treatment [15], the rationale being that the physician should not be required to explain why any particular diagnosis was not correct or why any particular scientific treatment did not produce the desired result. The frequency with which the res ipsa doctrine is being invoked in medical malpractice litigation appears to be increasing, not at a rate that is necessarily alarming but at a rate, nevertheless, sufficient to warrant awareness on the part of radiologists. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence to be probably, rather than possibly. The plaintiff in a res ipsa case is required to allege several elements. As will be seen later in this article, this criticism of res ipsa, written so eloquently 115 years ago, persists today by many in the judiciary. Category : Res ipsa loquitur doctrine Languages : en Size: 65.11 MB View: 3968. Without experts, we feel the jury could have no basis other than conjecture or speculation. Notwithstanding the court's official majority ruling, however, the following dissenting opinion is noteworthy [12]: We dissent. The res ipsa loquitur is an English tort law doctrine allowing a plaintiff in a tort lawsuit to prove tort or negligence using circumstantial evidence. Res Ipsa Loquitur is a legal theory that can help individuals recover the compensation they deserve after an injury caused by another person. 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