One of the hardest parts of a medical malpractice claim is proving that a healthcare provider acted negligently. Unfortunately, this is also usually the most important: without showing negligence, there is no way to recover.
The question of proof can be especially difficult because of the technical nature of medical practice. Even in cases that result in injury rather than death, the plaintiff may not be able to say what happened. This could be for a host of reasons: he or she may have been under anesthesia to varying degrees, and so may not have seen anything. But even when fully conscious, most of us will not be able to say with any certainty just what went wrong. The courts have recognized this problem for some time, and have adopted a doctrine to compensate. In the legal world, this is known as res ipsa loquitur, which is Latin for “the thing speaks for itself.” In other words, things are so clearly the result of negligence that there is no other reasonable explanation.
The rule and its name originated in the courts of England in 1863. In that case, a barrel of flour fell out of a shop window and landed on someone below. There was no way for the plaintiff in that case (the passer-by) to prove what had happened in the shop to cause the barrel to fall. The court decided he did not have to; instead, it concluded that there was no way for the barrel to roll out of the window except through someone’s negligence. Whenever this rule is found to apply, the defendant then must prove that there was an innocent explanation for whatever happened. One example of this appears in the case of Loomis v. Toledo Rys. & Light Co. from 1923. In Loomis, some electric lines and a pole fell on the plaintiff’s car, but the company was able to show that there had been unusually high winds that night.
This rule was originally not permitted in medical malpractice cases. In general, the courts required specific evidence that the care received was not up to the applicable standards. This began to change, however. First, the rule was applied to cases where negligence was obvious even to someone without medical training, such as when a surgeon leaves a sponge or some other item in a patient’s body during surgery. As the 20th Century went on, Ohio courts allowed this rule more and more in medical malpractice cases, even where the plaintiff alleged specific acts, and so no longer needed the rule’s help as in the cases discussed above.
In modern practice, the plaintiff must show two things for the rule to apply: (1) that whatever caused the injury was under the defendant’s exclusive control either at the time of injury or creation, whichever is applicable; and (2) that the injury would not have happened normally if the normal amount of care was used. Experts can be used to show the second element, but that goes both ways: If the defense also provides experts that say no negligence occurred, then the dispute must be resolved by the jury and the res ipsa loquitur rule does not apply.
As the Ohio Supreme Court recently noted in Estate of Hall v. Akron General Medical Center, decided in 2010, these cases must be decided on a case-by-case basis. But the rule of res ipsa can be a valuable tool for the plaintiff where there would not be enough evidence otherwise. In any event, experienced representation is the key to ensuring any success.