Negligence-Res lpsa Loquitur-Application to Medical Malpractice Actions: 1951-196
Res ipsa loquitur, “the thing speaks for itself,” has been the subject matter of extensive legal literature since its inception almost a century ago. It is now well settled that res ipsa loquitur is no more than an inference of negligence from circumstantial evidence. The doctrine is applicable if an act or occurrence is of the type that ordinarily would not take place without negligence, assuming the plaintiff has himself been passive, and if the instrumentality causing the harm is within the exclusive control of the defendant. The application of res ipsa loquitur to the medical malpractice area has introduced a number of problems, both legal and philosophical, resulting in a wide diversity of opinion as to whether the doctrine should be any more sparingly applied in medical negligence cases than it should in cases of exploding bottles, airplane crashes or similar unexpected events. It is often stated that expert medical testimony is a prerequisite to the establishment of a malpractice claim, except in the clearest of cases where it can be said that “the result speaks for itself.” Judicial reluctance to expand the number of cases in which expert testimony is not required has been the foremost obstacle to the invocation of the doctrine. The reasoning of the courts appears to be that, in a majority of cases of alleged malpractice, it is beyond the capability of a jury of laymen to decide whether a particular event is of the type that ordinarily would not take place had due care been exercised. Thus, a failure to fulfill the first requirement renders the doctrine unavailable. Whether or not such an approach is too formalistic is arguable. There are, however, valid arguments that can be suggested for permitting the use of res ipsa loquitur in the medical negligence field. First, although expert testimony would be desirable, it is often impossible to procure. The general reluctance of physicians to testify against one another is well known, although characterization of this as a “conspiracy of silence” is questionable. But regardless of the motivation for their unwillingness, it is clear that a plaintiff in a medical malpractice action operates under a serious handicap in obtaining expert medical witnesses. Second, in many cases of medical or surgical treatment the knowledge of the facts is peculiarly within the possession of the doctor. More often than not, the plaintiff was unconscious or totally ignorant of the procedures that were employed. Third, the confidence and trust reposed in the doctor by a patient demands that the former come forward with some explanation of what went wrong. Finally, it is maintained that the doctrine should not be any less available to a plaintiff merely because he happens to be suing a doctor, rather than a bottle manufacturer or an airline.