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Expert Testimony & Res Ipsa Loquiter

Proving malpractice on the part of a health care provider is most often very difficult. Experts need to be hired from the same field as the professional being charged with medical malpractice to testify what the defendant did not do or should have done under applicable professional standards. Medical professionals are generally discouraged by medical organizations and insurance providers not to testify against others in the same organization or using the same insurance provider. It is challenging to find experts that have the integrity to come forward and testify against one of their peers.

Medical malpractice is also difficult to prove because the records and reports are often completed by the defendants. Many times the patient is unconscious, leaving only the health care providers' reports to discern what really happened in the provider's words, in their own way. Health care providers have been found to frame their reports to protect others from possible claims of misconduct.

Res Ipsa Loquiter is a legal term meaning "the thing speaks for itself". In this type of case, an expert is not needed because the health care provider's negligence was overtly obvious. This theory is rarely used except in clear medical malpractice cases as most attorneys are concerned that the theory may not be accepted by the Court, dismissed because the attorney did not hire an expert to prove the negligence of the defendant. Medical malpractice attorneys that attempt to use this theory and retain reports and additional evidence in case the Court refuses to accept the res ipsa loquiter theory.

Fortunately, the law also recognizes that plaintiffs face certain difficulties in proving medical negligence, due in no small part to the fact that they are often not conscious when the negligence occurs. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as "res ipsa loquiter."

To invoke this doctrine successfully, a plaintiff must show that:
1. Evidence of the actual cause of the injury is not obtainable;
2. The injury is not the kind that would ordinarily occur in the absence of negligence by someone;
3. The plaintiff was not responsible for his or her own injury;
4. The defendant, or its employees or agents, had exclusive control of the instrumentality that       caused the injury; and
5. The injury could not have been caused by any instrumentality other than that over which the      defendant had complete control.

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he/she was not negligent. A classic example of the type of case in which this doctrine arises is where a medical instrument is left inside a person following surgery. Typically, a medical report will not state "Dr. Jones left a sponge in patient's abdomen," and there may be no recorded proof of how or why the negligence occurred. Yet clearly, a surgical instrument would not be left in a patient in the absence of someone's negligence. Also, an unconscious patient certainly cannot be held responsible for this type of injury, and it would have been the operating physician and staff who had exclusive control over the surgical tools.

Thus, the burden falls not on the patient to prove who left the surgical instrument inside him/her, but on the individual professional health care providers to try to establish that it was not their
negligence that resulted in the injury. If an attending physician, who is an independent contractor rather than an employee of a hospital, can demonstrate that he/she left the operating room and instructed a nurse, who was a hospital employee, to remove and account for all surgical instruments before the patient was closed, the hospital might be held liable for the negligence of its employee. Thus, the co-defendants rather than the plaintiff do the bulk of the investigation and finger-pointing.

Medical malpractice cases can be hard to prove. Fortunately, the doctrine of res ipsa loquitur provides one mechanism that can help plaintiffs prove their case by accepting that some circumstances are in and of themselves evidence of negligence.

Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what actually happened. Also, some professional health care providers may frame their reports so as to protect someone guilty of negligence.

Conclusion

When hospitals and doctors make mistakes, the consequences can be devastating. A 1999 study by the Institute of Medicine concluded that medical errors kill between 44,000 and 98,000 Americans annually. The Joint Commission on Accreditation of Healthcare Organizations found that reports of surgeries performed on the wrong site or patient tripled in four years. Despite an epidemic of medical errors, many providers and insurance companies seek to avoid responsibility. The problem is too many medical errors, not too many lawsuits.

The existing system prevents frivolous malpractice lawsuits. Malpractice cases are expensive and difficult to win. Injured patients face the daunting task of finding experts willing to break the code of silence and testify against a colleague. The "routine" malpractice case requires upwards of $50,000.00 in litigation expenses. If the patient loses, neither the patient nor the attorney is paid. Recognizing these formidable obstacles, attorneys know they must file reasonable claims.
If you or a family member has been injured by medical malpractice, seek the advice of an experienced lawyer.