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Posts Tagged ‘res ipsa’

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.

Obviously, you cannot throw the burden of proof onto the doctor just to make it easier for you. In order for your lawyer to plead res ipsa, you have to satisfy three conditions:

1. What

happened to you must be the sort of thing that does not n

ormally happen in the absence of medical malpractice or dental malpractice.

Like the patient finding his shoulder was damaged after an appendectomy, the injury has to be something that cannot be easily explained as a normal complication, such as having a sore foot for a few weeks after foot surgery, or your 90 year-old grandmother dying of a stroke. It has to be something out of the ordinary, and something the doctors never warned you about, such as finding that your baby is brain damaged after you were led to believe your pregnancy and delivery were normal.

2. Whatever was done was under the physician’s or dentist’s exclusive control.

The best example of this is a surgery in which the doctor has full authority and responsibility for everything that is done. It is known as the Captain of the Ship theory.

3. You were either unconscious at the time of your injury or doing exactly what you were told to do by the physician or dentist.

What happened was not due to any voluntary act on your part, and you were not guilty of contributory negligence.

In a New Jersey case, a doctor treated a woman for a chronic chest complaint without ever taking a chest x-ray. Finally, after six years, another doctor took an x-ray and found she had tuberculosis. When the first doctor was sued, he said it was the patient’s fault. If she did not improve in six years, she should have consulted another doctor. No one forced her to keep going back to him when she was not getting better. The court disagreed, stating that the patient could not be criticized for misplaced confidence in her doctor and following his orders faithfully. He had exclusive control and was the only one to blame.

Your lawyer will tell you that pleading res ipsa is risky, and your chances of winning are not good. He will probably recommend using it only as a last resort, if you absolutely cannot find a doctor willing to act as your medical expert witness or

dental expert witness. Even though your case may be obvious, the defense lawyers will bring in experts against you and raise side issues and legal technicalities that you will probably lose.

But res ipsa does come into malpractice cases in another way and can be useful when you do not know exactly what happened or who was responsible. In order to sustain a legal complaint against somebody, whether it is for medical malpractice, dental malpractice, or food poisoning in a restaurant, you have to prove three things:

1. What injury you suffered.
2. Who was responsible.
3. How that person’s actions caused the injury.

What if you are not sure what happened, or who did it? When you go to a doctor’s office or into a hospital, people will say: “take this pill”, “hold still for an injection”, etc. Either they do not explain what they are going to do, or it is highly technical, and you do not understand it. People you never saw before, and may never see again, do all sorts of things to you. A doctor comes into your room the night before surgery, asks you a few questions, listens to your heart, and leaves. You do not know who he is or what his function is, but this is the doctor, who is going to give you anesthesia the next day. For three or four hours, your life and future health will be in his hands.

You have headaches or chest pains, and your doctor sends you to the hospital for arteriography (x-rays of an artery). In the x-ray department, someone you do not know, who could be a doctor, a nurse, or a technician, puts a tube into the artery in your groin and threads it up to your heart or brain and injects dye, so they can take pictures of the arteries. This is medicine at its best. But, do you know who they are or what they are doing? You can only hope they are qualified do it right.

In a Missouri case, a man had an aneurysm (weak spot and bulge) of an artery in the brain. Aneurysms can burst and kill you, but brain surgery to clamp them is risky and expensive. So, it was decided to use another treatment. The doctor put a tube into the femoral artery (in the groin) and threaded it up to the aneurysm in the brain. Then he injected a medical version of crazy glue, which sticks to human tissue. The glue seals the leak just as effectively as brain surgery. When it works, it is magic.

Before pulling out the tube, the doctor sent the patient back to x-ray to check that the glue was in the right place. But, by the time the x-rays were taken, the glue had hardened around the tip of the tube. One end of the tube was stuck to his brain, and the other was sticking out of his groin. The tube could not be pulled out without tearing the artery and causing a potentially fatal hemorrhage. The court held that a juror does not need a medical expert

witness to know that the tube should not have been left in until the glue hardened, and the patient did not need an expert to explain the malpractice.

Or, you are in an automobile accident and taken to the ER. They admit you to the hospital, where you may be treated by several different doctors and nurses. Ideally, you get the best medical care, and everything turns out fine. But, when you are discharged from the hospital and find out something was done wrong, how do you know when or where it happened, or who did it? Can you use res ipsa in those situations?

The way res ipsa works is best seen in a famous California case. A doctor took out a patient’s appendix, and when the patient woke up, he found that the nerves and muscles of one shoulder were permanently damaged. It is a long way from the appendix to the shoulder, so he sued the doctor for medical malpractice. Remember, we said you have to say who hurt you and how they did it in order to establish your case. The doctor’s lawyer said the patient did not have a case, because he could not say 1.) who had injured him, or 2.) how it had been done.

That was unfair, because the patient was asleep at the time, and there was no way he could know what happened. All he knew was that he had a normal shoulder before the operation and was crippled when he woke up. The case went up to the California Supreme Court, not once but twice, and both times the court said the plaintiff did not have to say who hurt him or how he was injured. Since the doctors and nurses were the only ones who knew what took place, it was up to them to explain how the injury could have happened without negligence.

That is how you can use the theory of res ipsa. When you do not know what happened, it shifts the burden of proving how you were injured to the doctor, who then has to prove he did not commit medical malpractice or dental malpractice. Does that go against the spirit of the law that says you are innocent until proven guilty? No. It is a matter of fairness and makes the person who has the information come forward with it. If a doctor could cover up merely by refusing to disclose what happened, it would be easy for him to win malpractice suits by concealing the evidence and would be unfair to his patients. Res ipsa makes the doctor come forth with the evidence and justify his actions.

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