Liability & Res Ipsa Loquitur
In some cases, negligence is so apparent that the law allows for a presumption of fault. This is known as the doctrine of Res Ipsa Loquitur.
"Res Ipsa Loquitur"
Latin for "the thing speaks for itself".
A legal principle that allows a jury to presume that a health care provider was negligent, instead of requiring the injured party to establish negligence through direct evidence.
Three Elements Required
1. The Event Ordinarily Does Not Occur Without Negligence
Cutting a tendon during a drain removal is analogous to "never events" like leaving a sponge inside a patient. It is not a typical complication of a properly performed procedure.
2. Exclusive Control
The injury must be caused by an agency or instrumentality within the exclusive control of the defendant. In surgery, the surgeon has control over the instruments and the patient's body.
3. No Contributory Negligence
The injury was not due to any voluntary action or contribution on the part of the plaintiff (the patient was likely sedated or passive during the procedure).