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Res ipsa loquitur: can it apply to medical malpractice actions?

In a medical malpractice lawsuit, sometimes injury causation is easy to establish, such as a surgical error in which a clamp was left inside of you upon completion of the operation. At other times, though, causation may be harder to pin down. Part of the reason why this can happen is that often the source of reports and other information on medical procudures performed on you comes from the medical personnel themselves, who have little incentive to write down anything that might expose them to liability. This can lead to a situation in which you know that something went wrong while you were in the care of a physician or were at a hospital, but you cannot identify exactly what was done that failed to meet the appropriate medical standard of care.

This does not mean that you do not have a cause of action. It does mean that your attorney must be prepared to be more creative in building your cause of action. When it comes to injury causation, one of these more creative methods is known as res ipsa loquitur, which translated means, "the thing speaks for itself."

Res ipsa loquitur applies when you have been injured, but cannot obtain direct evidence of cause. To prove this particular method, you must also establish that the injury you suffered could not have happened absent some form of negligence, and that you did not cause your own injury; that the defendant physician or health care institution exclusively controlled the means by which your injury happened, and that there was no other instrumentality that could have caused your injury other than what was in the defendant's control.

The advantage of a res ipsa loquitur approach is that if you can demonstrate its elements then the burden of proof shifts to the defendant to prove that he or she was not negligent.

Res ipsa loquitur can be complex to establish, and not every medical malpractice case will rely on it. It is but one tool available to your attorney, who will work with you and the specific facts of your case to present the most persuasive argument possible to support your claims of injury and the need for compensation.

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