Archive for May, 2012
Earlier, we said that the doctor had to have exclusive control of your care. What if you do not know who had control, or what if several doctors and nurses were involved. The California patient we mentioned earlier had no idea who was responsible for his injury. In a case like that, you do not have to know. You can ask everybody and anybody what they did to you. In the California case, the court said all defendants, who had any part in the surgery, could be called upon to explain their actions.
Can you see what this does for you? You only have to establish what happened to you was probably due to medical malpractice or dental malpractice, and everybody who treated you has to explain his or her actions. It prevents the doctors from defeating your case by simply sitting on evidence, which only they have access to. It may be impossible for you to find out precisely what happened. So, res ipsa makes the doctor, who knows what went on, supply the information.
You do not paint yourself into a corner by guessing who you should sue, you sue under the theory of joint and several liability. That means all or any one of the people you name may be liable for your injuries and the whole amount of your damages. It lets the court assign responsibility and damages as it sees fit. You do not have the responsibility of trying to tell the jury who did what, or who has the money to pay for your damages.
In a Pennsylvania case, a patient suffered a serious back injury while under anesthesia, probably from having been dropped, and only sued the surgeon. When his medical expert took the witness stand at trial, the defense
lawyer asked him if he could say exactly who dropped and injured the patient. Was it the surgeon, the anesthetist, or a hospital employee? The expert admitted he could not say for sure, and the judge ended the trial right there, because the patient failed to make a case. If he had named everybody, jointly and severally, he probably would have won.
The Rule Is: If you are not sure how your injury occurred, or who was responsible, keep your options open until you find out. Your lawyer will know if your state recognizes the theory of res ipsa in medical malpractice and dental malpractice cases.