Lisa Zenzen Baker, 1961-2003


Friday, November 11, 2005

Shifting the burden of proof

Res ipsa loquitur explained

The following is taken from the lawyer referral Web page Medical

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Since medical organizations generally discourage those in the medical professions from testifying against one another, it is difficult to find experts who have the integrity to come forward and testify as to misconduct by one of their peers. In addition, many insurance companies providing coverage to health care providers require that they not testify against other providers who are insured by the same company.

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 truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Fortunately, the law 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 is 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 loquitur." Translated, this Latin phrase means "the thing speaks for itself," and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone's negligence.
To invoke this doctrine successfully, a plaintiff has to show that:

* Evidence of the actual cause of the injury is not obtainable;
* The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
* The plaintiff was not responsible for his or her own injury;
* The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
* The injury could not have been caused by any instrumentality other than that over which the defendant had 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 or she was not negligent. A classic example of the type of case in which this doctrine arises is where a sponge or other medical instrument is left inside a person following surgery. Typically, a medical report will not state "Dr. Smith left forceps 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 deemed 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 or her, but on the individual 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 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. In any event, the co-defendants rather than the plaintiff do the bulk of the investigation and finger-pointing, which is quite appropriate given the circumstances.