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Res Ipsa Loquitur And Its Application In Medical Negligence

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 negligence.[iv]

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:
  1. the presence of a legal obligation with respect to the doctor to give care or treatment to the patient
  2. failure to stick to the guidelines by the doctor while treating the patient ultimately resulting in the breach of duty
  3. a connection between negligence and damage to the patient
  4. 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:

  1. 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
  2. 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
  3. 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:
  1. 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
  2. the result caused should not be the exclusion of negligence
  3. 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 negligence.

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. Haas.

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]

Once 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 court.

The court has tried to explain the situation in Younger v. Webster case, 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.

Due to 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 negligence.
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.

Those are:
  1. Medical practices involve many uncertainties which are part of an inexact science.
  2. 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.

Without 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

  1. Jacob Mathew v. State of Punjab and another, A.I.R. 2005 S.C. 3180
  2. 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
  3. Res Ipsa Loquitur and Evidence Law, available at
  4. Gene A. Blumenreich, The doctrine of Res Ipsa Loquitur, February 1987
  5. B Sonny Bal, An Introduction to Medical Malpractice in Unites States. Clin Orthop Relat Res. 2009 Feb; 467(2): 339–347.
  6. Patrick Van Den Heever, The Application of the Doctrine Res Ipsa Loquitur to Medical Negligence Cases: A Comparative Survey, January 2002
  7. 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 (1977).
  8. Jasbir Kaur v. State of Punjab, A.I.R. 1995 P. & H. 278
  9. Pederson v. Domouche , 7272 Wash. 2d 73, 431 P.2d 973 (1967).
  10. Horner v. Northern Pacific Beneficial Association Hospitals, Inc., 62 Wash. 2d 351, 361, 382 P.2d 518 (1963).
  11. Jackson v. Criminal Justice TrainingComm’n, 43 Wash. App. 827, 830-31, 720P.2d 457 (1986).
  12. Seneris v. Haas, 45 Cal. 2d 811, 825, 291 P.2d 915, 923 (1955)
  13. Cho v. Kempler, 177 Cal. App. 2d 342, 349, 2 Cal. Rptr. 167, 171 (1960)
  14. Joan Teshima, Applicability of Res IpsaLoquitur in Case of Multiple Medical Defendants–Modern Status, 67 A.L.R.4th 544,584-85 (1989).
  15. Younger v. Webster, 9 Wash. App. 87, 94, 510 P.2d 1182 (1973).
  16. Swanson v. Brigham, 18 Wash. App. 647, 571 P.2d 217 (1977).
  17. McLean v. Weir, Goff and Royal Inland Hospital, [1980] 4 WWR 330 (BCCA)
  18. Kennedy and Grubb Medical Law Text with Materials (1994) 466
  19. Morris v Winsbury-White, supra 494

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