Medical negligence is seen to be a recurrent venture within the field of
medical practice. Negligence as defined by the court in Jacob Mathew v.
State of Punjab
,[i] is the breach of duty which one party owes to another.
The duty can be in the form of an act or omission and it is referred to as
the duty of care and due to the negligence of which it causes an injury to
the person. In the case of medical negligence, it is the failure of medical
practitioners to exercise certain acts or omission while discharging their
duties with respect to their patients.
Generally, it has been observed that
in most of the negligence cases the burden of proof lies with the plaintiff
but during medical negligence, it becomes hard for the plaintiff to prove
the negligence caused by the defendant to him. The medical field is
considered to be complicated to be understood by an average patient and
mostly the patients are unconscious when the act performed causes damage.
Therefore to prove that the damage is caused to him due to malpractice
performed by the doctor becomes difficult. [ii]
This gives rise to the concept of Res Ipsa Loquitur. It is a Latin phrase
which means the things speak for itself. It acts as an evidentiary rule in
personal injury law. Through the doctrine of Res Ipsa Loquitur, the
plaintiff only has to present certain circumstantial evidence or facts which
will shift the burden of proof on the defendant to prove that the act done
by him/ her was not the act of negligence. Circumstantial evidence involves
certain facts which will point out the negligence on the part of the
defendant as the logical conclusion and it need not have to be presented or
demonstrated in front of the court.[iii] This doctrine has been explained in
Halsbury's Laws of England.
It has been considered to be an exception to the
general rule. The general rule says that it is the obligation of the
plaintiff to prove that the harm or damage caused to him/her by the
defendant was due to the negligence on the defendant's part.
The doctrine of Res Ipsa Loquitur shifts the burden of proof from the plaintiff to the
defendant where now the defendant has to prove that the act which is
considered as negligence by the plaintiff can reasonably happen and without
him being negligent. This doctrine which is used as an exception is not the
rule of law but a rule of evidence which gives the upper hand to the
plaintiff and dispose of him/her from the obligation of proving the
Elements Of Medical Negligence
The patient asserting medicinal negligence should, for the most part,
demonstrate four components to make out an effective case of malpractice[v].
These components include:
- the presence of a legal obligation with respect to the doctor to
give care or treatment to the patient
- failure to stick to the guidelines by the doctor while treating the
patient ultimately resulting in the breach of duty
- a connection between negligence and damage to the patient
- the presence of harms that stream from the damage to such an extent
that the legal system can give review.
The elements of medical negligence talk about the legal obligation of doctor
existing towards the patient; this obligation becomes possibly the most
important factor at whatever point a relationship is built up between the
patient and doctor.
The general thought of a lawful obligation is that in
socialized society, every individual owes an obligation of reasonable
consideration to other people. Based on this obligation, where a doctor
gives administration to a patient, the doctor owes a duty of care towards
the patient. A patient can't make a doctor liable for the breach of his duty
if there is no relationship between them.
When a relationship is built up,
for example, covering patients for his co-worker, being a part of the clinic
where needy patients are dealt with, or giving medical assistance to a
mishap injured individual by the roadside, an obligation of reasonable care
pursues. The court considers certain actions of the doctor to be an
exception to the primary element of medical negligence. Those actions can be
doctor acting nonprofessional and see the patient outside the clinic and
hospital, as in these cases there is no considerable relationship between
doctor and patient.
The patient can use the concept of standard of care as a witness to prove
that there has been a breach of duty. The standard of care refers to the
care which generally the patients receives from the health care
professionals. To prove this element, the reports are necessary to be
produced from the expert in front of the court. A therapeutic negligence
guarantee by and large closes with an estimation of harms.
Elements Of Res Ipsa Loquitur
The doctrine of Res Ipsa Loquitur has three elements:
- the injury that had occurred under the circumstances must be
explicit and can only occur due to someone's negligence and it cannot
occur in the ordinary situations
- the injury caused by the defendant to the plaintiff must have been
done with the use of some instrument which was exclusively under the
control of the defendant
- the injury caused to the plaintiff must be under the scope of the
defendant's duty and it must not be due to the voluntary act or the
contribution from the plaintiff's side[vi]
The first condition of the doctrine is satisfied if there is a reasonable
prospect that the event that had occurred would not have occurred if there
was no negligence on the defendant's part. This is the difficult element to
prove because plaintiff being the layman in respect to medical science
cannot prove the medical negligence based on his/her common knowledge.
To deal with such situations, the Washington court[vii] has provided three
incidents where the first element of the doctrine will be justified:
- leaving foreign objects like scissors, sponges or any such objects
in the body of the patients will be considered as an act done due to
negligence thus causing an injury to the patient
- the result caused should not be the exclusion of negligence
- when the result is presented by the experts who work in the medical
field which is enough to draw an inference that the incident that had
caused an injury to the plaintiff was due to the negligence
This can further be understood with an example. In Jasbir Kaur v. State of
Punjab,[viii] due to the negligence of the staff, the newly born child was
carried away by the cat which was later to be found bleeding in the
bathroom. The Court held the hospital authorities to be guilty because of
breaching the duty of care and being negligent in their part which resulted
in the cause of this unusual incident.
In Pederson v. Domouchel
,[ix] the court ruled that the plaintiff will be
allowed the applicability of the doctrine res ipsa loquitur. Here, the
plaintiff had gone through brain damage and during the surgery, he was given
anesthesia from which he woke up after a month which shows medical
Similarly, in Horner v. Northern Pacific Beneficial Association Hospitals, Inc
.[x] the results from the medical experts were produced in the court
which proved that the injury to the brachial-plexus nerve happened due to
the overdosage of anesthesia which was enough to give the plaintiff the
benefit of the doctrine res ipsa loquitur. Due to the excessive anesthesia,
the plaintiff woke with the paralysis in her right arm. It was not required
for her to bring the evidence or exact cause for the injury. The medical
expert's reports were enough to give her the benefit of the doctrine which
translates to that the things speak for itself.
The second criteria of the doctrine can only be fulfilled by the presence of
any instrument or object which was completely under the control of the
defendant and it was that object or instrument which caused the injury to
the plaintiff. The plaintiff has to prove in the court that he/she was in
such a position that when the harm or damage was done to him/her, he/she was
not in the condition to avoid it or stop it.
This second criterion is
mentioned because, during the medical treatment, the plaintiff is in the
unconscious state where he/she is not able to understand the surgery done to
him/her by the defendant is causing harm or injury to him/her. The plaintiff
is not in the state to understand medical negligence.[xi]
This element can be explained further with the help of the case Seneris v.
In this case, the plaintiff went to the hospital for her regular
obstetrical case. She was given a few doses of the spinal anesthetic by the
defendant. After a few days, she felt pain in her legs and she had
difficulty in moving her legs. She went to another hospital where she was
diagnosed with a back brace which was fitted to her torso and due to which
she was having crutches. The court held the defendant guilty and gave the
plaintiff the benefit of the doctrine Res Ipsa Loquitur passing the judgment
that there was medical negligence on the defendant's part.[xii]
In Cho v. Kempler
,[xiii] due to the medical negligence of the defendant, the
plaintiff suffered from the injury. After the first operation, the plaintiff
suffered from severe pain on the left the side of the face and the defendant
knew that the surgery went wrong.
He did the second operation on that
patient. During the second operation, the doctors came to knew that in the
first operation, the plaintiff's facial nerve was completely severed. The
court held that the defendant was completely responsible for the cause of
injury as that incident would not have happened in the ordinary cases and it
happened because the defendant was acting negligently.
The third element of the doctrine talks about no voluntary action or
contribution should be shown from the plaintiff's part. The injury or damage
caused to the plaintiff must be due to the breach of duty of care of the
defendant and that act or omission must not involve the voluntary act or
contribution of the plaintiff. This criterion is only satisfied when the
plaintiff is in the unconscious state of mind during the surgery.[xiv]
all the three criterions have been satisfied, the court has to give the
plaintiff the benefit of the doctrine res ipsa loquitur and it will conclude
through the facts that the act or omission by the defendant was negligent if
the defendant will not present the satisfactory explanation in front of the
The court has tried to explain the situation in Younger v. Webster
, where the court said that not permitting the doctrine to the patient
will be unjustifiable as the patient being unconscious submitting himself to
the medical personnel for care and during that period some injury is caused
to him/her from the instruments or the object used for the treatment. The
permanent injury caused to him was due to someone else's negligence and due
to the doctor's negligence, he/she would not be able to recover unless those
facts are revealed showing the liability of the doctors and nurses. [xv]
The Exception To The Applicability Of The Doctrine
There has been an exception where the court has denied the plaintiff's plea
due to the lack of medical proof by the experts. In Swanson v. Brigham case, [xvi] the
court denied the plea of the plaintiff on the basis of Res Ipsa Loquitur. In
the mentioned case, there was a death of the fifteen-year-old plaintiff
during the treatment of infectious mononucleosis due to asphyxiation.
the lack of medical testimony by the expert, the court denied the doctrine
and ruled that since the first criteria of the doctrine of res ipsa loquitur
are not satisfied, it will not be applicable.
There have been cases which can be held as an exception to this doctrine.
In McLean v. Weir, Goff and Royal Inland Hospital,[xvii] the plaintiff
wanted to sue the doctor for his suffering based on the doctrine but does
not want to call an expert.
The defendant called an expert and it was proved
that whatever injury happened to the plaintiff was not because of the
The two reasons are provided by Kennedy and Grubb which explains why the
doctrine of res ipsa loquitur should not be made available to the plaintiff
in medical negligence cases.
- Medical practices involve many uncertainties which are part of an
- Modern developments in the medical fields have resulted in the
discovery of evidence by the proper practice of maintaining and
recording accurate medical records carefully which actually informs the
plaintiff what actually happened. Therefore, a plaintiff is not in the
disadvantage of not knowing anything. [xviii]
In Morris v. Winsbury White
, [xix] the court held that the applicability of
the doctrine is not possible because the plaintiff was treated by a lot of
nurses and sisters and two medical officers and not by the defendant alone.
So any injury happened during the course of treatment cannot be regarded as
the negligence because of the defendant and everyone was performing their
ordinary hospital duties.
The prevailing judicial position with reference to the invocation of the
doctrine of res ipsa loquitur seems to be that even as it enjoys the
applicability of medical negligence instances its cost is seldom conclusive.
It seems that the application of the beneficiaries of the doctrine to
medical negligence instances is that it prevents a defendant from averting
responsibility with the aid of surely electing not to offer proof under
occasions in which he is aware of or must realize what passed off.
the energy to draw inferences of negligence afforded to the court via making
use of the doctrine, it (the court) might be denied the proof of the
defendant in a few instances, which in turn might render the court powerless
to research the case to the total.
Whilst it's miles flawlessly
understandable that the courts constantly endeavor to contain the principle
as some distance as possible in regards to its application to clinical
negligence instances because matters can and do in truth pass wrong within
the practice of medicine, but cautious and skillful the scientific
practitioner, it's far submitted that it remains an essential evidentiary
device inside the armory of a plaintiff who's every now and then unable to
identify the operator or method responsible for his injury. Responsible
application of the doctrine in deserving instances prevents viable injustice
to a plaintiff while requiring the defendant merely to gentle an ideal ex
- Jacob Mathew v. State of Punjab and another, A.I.R. 2005 S.C. 3180
- Nnamdi Azikiwe University Journal of International Law and
Jurisprudence, Applicability of the doctrine of Res Ipsa Loquitur in
Medical Negligence in Nigeria, 2018 available at https://www.ajol.info/index.php/naujilj/article/view/168816
- Res Ipsa Loquitur and Evidence Law, available at https://injury.findlaw.com/accident-injury-law/res-ipsa-loquitur.html
- Gene A. Blumenreich, The doctrine of Res Ipsa Loquitur, February
- B Sonny Bal, An Introduction to Medical Malpractice in Unites
States. Clin Orthop Relat Res. 2009 Feb; 467(2): 339–347.
- Patrick Van Den Heever, The Application of the Doctrine Res Ipsa
Loquitur to Medical Negligence Cases: A Comparative Survey, January 2002
- Brown v. Dahl, 41 Wash. App. 565, 580(1985); ZeBarth v. Swedish
Hosp. MedicalCenter, 81 Wash. 2d 12, 499 P.2d 1 (1972);Horner v.
Northern Pac. Beneficial Ass’nHosps., Inc., 62 Wash. 2d 351, 382 P.2d
518(1963); Swanson v. Brigham, 18 Wash. App.647, 649-50, 571 P.2d 217
- Jasbir Kaur v. State of Punjab, A.I.R. 1995 P. & H. 278
- Pederson v. Domouche , 7272 Wash. 2d 73, 431 P.2d 973 (1967).
- Horner v. Northern Pacific Beneficial Association Hospitals, Inc.,
62 Wash. 2d 351, 361, 382 P.2d 518 (1963).
- Jackson v. Criminal Justice TrainingComm’n, 43 Wash. App. 827,
830-31, 720P.2d 457 (1986).
- Seneris v. Haas, 45 Cal. 2d 811, 825, 291 P.2d 915, 923 (1955)
- Cho v. Kempler, 177 Cal. App. 2d 342, 349, 2 Cal. Rptr. 167, 171
- Joan Teshima, Applicability of Res IpsaLoquitur in Case of Multiple
Medical Defendants–Modern Status, 67 A.L.R.4th 544,584-85 (1989).
- Younger v. Webster, 9 Wash. App. 87, 94, 510 P.2d 1182 (1973).
- Swanson v. Brigham, 18 Wash. App. 647, 571 P.2d 217 (1977).
- McLean v. Weir, Goff and Royal Inland Hospital,  4 WWR 330 (BCCA)
- Kennedy and Grubb Medical Law Text with Materials (1994) 466
- Morris v Winsbury-White, supra 494