The concept of res ipsa loquitur may sometimes be used in a medical malpractice case to prove the negligence of the defendant medical provider. This may be done in Louisiana and other states where the plaintiff has shown that the injury is caused by an agency or instrumentality in the exclusive control of the defendant. It must be shown to be an injury that would not occur in the absence of negligence. In addition, it must be shown that the plaintiff herself did not cause the injury through some action of her own in order for medical malpractice liability to apply.
That theory of proving liability was apparently successfully applied in a medical malpractice case in another state where a jury recently entered a verdict of $20 million in favor of the plaintiff. The plaintiff was admitted to a rehabilitation hospital for treatment. Her records revealed that she was allergic to opiates. Nonetheless, about a week after admission hospital staff found her in a comatose state and with opiates found in her blood.
She was stabilized and returned to her home, but only after she suffered severe brain damage from the opiates and the comatose condition. She died several months later from the symptoms set into motion by the earlier opiate overdose. Due to the fact that the hospital exerted exclusive control over the plaintiff during the time leading up to her cerebrovascular event, the trial court ruled that the hospital could be found liable and allowed the jury to hear the case.
It appears that all of the elements of res ipsa loquitur under Louisiana law existed in this case so that a similar liability result may have been the result if the case was litigated here. Because the opiates were not prescribed, it may be assumed that the drugs were mistakenly given to her in the belief that they were something else. The mixing up of medications is listed as a major contributor to patient deaths and injuries in recent studies documenting the large numbers of medical malpractice deaths in the country each day.
Source: gadsdentimes.com, "Etowah jury returns $20 million verdict in medical malpractice case", Donna Thornton, May 19, 2016