These essential elements for a medical malpractice action do not evaporate when the doctrine res ipsa loquitur is applied. Throughout years, the courts have come out with the diverse application of res ipsa loquitur. We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. 3. 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. Malpractice issues in radiology. 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. In recent years courts in the majority of states (including but not limited to California, Illinois, Michigan, New Jersey, New Mexico, Ohio, Pennsylvania, and Wisconsin) have decided to allow such experts to “bridge the gap” between the common knowledge of the jury and the common knowledge of medical experts by allowing physicians to testify in res ipsa medical malpractice cases. Res ipsa loquitur is a Latin phrase meaning "the thing speaks for itself." 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 … If the presumption arising out of the doctrine of res ipsa loquitur finds proper application anywhere, we think this is a case in which it should be applied. Res ipsa loquitur In the treaties on Medical Negligence by Michael Jones , the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. This testimony was needed to first establish the standard of care required for the procedure and, second, that the physician breached that standard of care. The condition of the plaintiff cannot but awaken the sympathy of everyone, but I must hold that there is no evidence before the court legally sufficient to support a verdict in her favor. There are certain cases of which it may be said res ipsa loquitur—a doctrine of presumptive negligence—and this seems one of them. In res ipsa cases, it is the court that decides as a matter of law whether there exists presumptive evidence of negligence against the defendant. Everythin… Judges began permitting res ipsa when a medical expert would simply testify that on the basis of his or her expert knowledge, the patient's injury probably would not have occurred in the absence of negligence on the part of the defendant–physician [15]. “Res Ipsa Loquitur ,” commonly referred to as “ Res Ipsa ,” is a Latin phrase meaning “the thing speaks for itself.”. I deem it my duty to without hesitation direct a verdict for the defendant. Courts across the nation have had to grapple with the question of whether to permit expert medical testimony to be used to educate the jury as to the likelihood that a medical adverse event would take place without negligence. The court of appeals affirmed the judge's instructions [11]: If a person erects a building upon a city street, he is under a legal obligation to take reasonable care that it shall not fall into the street and injure persons lawfully there. 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. A major factor that seems to have driven the trend toward liberalizing the applicability of res ipsa in malpractice litigation involving physician–defendants was the increasing tendency of the courts to favor injured patients. In that situation, the defendant, instead of being presumed innocent, is in essence presumed to be guilty and thus bears the burden of producing evidence that convinces the jury that he or she is innocent of committing the negligent act that is alleged. Before 1993, there were but 19 cases of postmyelographic meningitis reported in the medical literature [2], only one of which was caused by S. bovis [3]. Perceptual errors. A patient who received paravertebral nerve block injections from an anesthesiologist for treatment of severe shoulder and neck pain and who shortly thereafter suffered a pneumothorax filed a malpractice suit against the anesthesiologist. American College of Radiology Standard for Communication. I learned this Latin phrase from my attorney daughter. 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. Plaintiff could not establish that the defendant–radiologist was responsible for the infection, and plaintiff could not establish exclusive control on the part of the defendant. He rejected the attempt. In a slowly moving but inexorable evolution, however, the doctrine of res ipsa began being applied more liberally to lawsuits in which ordinary laymen could not infer negligence solely on the basis of their own common knowledge. 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. The phrase “res ipsa loquitur” is Latin and means that “the thing speaks for itself.” On its own, that will likely make no sense. The second element that must be alleged is that the medical procedure or misdiagnosis about which the lawsuit was filed was under the exclusive control of the defendant–physician. The performance of a paravertebral nerve block involves complex issues of anatomy, medical science, invasive procedures, and precision performance. Without experts, we feel the jury could have no basis other than conjecture or speculation. This came to mind when on October 28, we released the final set of results from the 2019 reading and math assessments. 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.' Review. The radiologist interpreted the study as disclosing spinal stenosis without evidence of other pathology. On behalf of the plaintiff, the expert may opine that the adverse event was so rare that it could not have occurred in the absence of negligence. Although the great majority of appeals court decisions throughout the nation affirm the applicability of the res ipsa doctrine in medical malpractice lawsuits with or without medical expert witness testimony, a recent in-depth analytic decision of the Pennsylvania Supreme Court raised substantial doubts about the widespread use of the doctrine in medical malpractice litigation. Thus, there are two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have occurred without negligence and the second, the reliance upon expert medical knowledge that the event would not have occurred without negligence. Summary: What if Draco Malfoy was sorted into Gryffindor? A minority (Idaho, Maryland, Minnesota, and Texas) allow the inference of negligence only when the subject matter lies within the ken of a layperson [18, 19]. 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. Additional reports [5–8] reiterated that S. bovis meningitis is quite rare, and when it did occur subsequent to myelography, the mechanism by which the pathogen was acquired remained unknown. The presumption of negligence continues to exist until the defendant has satisfied the court or jury, by a preponderance of evidence, that he or she was not negligent. Eleven years later, on the American side of the Atlantic, the Court of Appeals of New York adjudicated a lawsuit with similar issues. A hospital-based interventional radiologist performed the lumbar puncture, administered contrast medium intrathecally, obtained myelographic images, and supervised the CT examination. Notwithstanding Taft's initial refusal to recognize the validity of the res ipsa doctrine in medical malpractice lawsuits, judges soon thereafter began approving the applicability of the doctrine in malpractice litigation [9]. Eventually the patient developed paralysis and atrophy of the shoulder muscles. The plaintiff in a res ipsa case is required to allege several elements. Copyright © 2013-2020, American Roentgen Ray Society, ARRS, All Rights Reserved. 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. Constitutional Law; Criminal law; Bizarre; Academics; Politics; Media; Free Speech; Science; Torts; Columns; Uncategorized December 8, 2020 December 8, 2020. The court of appeals affirmed the judge's instructions [11]: If a person erects a building upon a city street, he is under a legal obligation to take reasonable care that it shall not fall into the street and injure persons lawfully there. The doctrine is not intended to exempt a plaintiff from the traditional burden of proving the defendant's negligence and, in fact, where the plaintiff is in a position to produce evidence of negligence, res ipsa is not available [14]. Es hat sich also nicht wie "eo ipso" eingebürgert. Third, the practice of medicine is a complex and experimental field. 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. 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