25
Mar
Res Ipsa Loquitur in Malpractice Cases
The res ipsa doctrine is a common law doctrine that can be used by a plaintiff in a medical malpractice case. Translated literally from the Latin, res ipsa loquitur means, “the thing, itself, speaks.” The seminal common law res ipsa case taught in law school is the case of Byrne v. Boadle, 159 Eng.Rep. 299 (1863). In Bryne, a barrel of flour either fell or was pushed out of a second story warehouse window, striking the plaintiff as he was walking by and wounding him seriously. The plaintiff sued the flour merchant’s business. His suit was initially dismissed for failure to make a prima facie case for negligence, as he could not say how the negligence occurred or who was responsible. The court in Bryne reinstated his case, finding the simple fact that the barrel rolled out of the window was evidence, in and of itself, of negligence on the part of someone. The thing, the barrel falling out of the flour merchant’s window, speaks for itself of negligence on the part of the flour merchant’s company.
The res ipsa concept has direct applicability to medical malpractice cases. Often the defendants have vastly superior knowledge over the injured plaintiff as to how the injury occurred. An example of such is a surgical instrument left in a patient after operation.
The classic New Jersey case along this line is Anderson v. Somberg, 67 N.J. 291 (1975). In Anderson, the tip of a surgical instrument similar to a forceps, called a rongeur, broke off during and became imbedded in a patient’s spine. The plaintiff sued the surgeon, the hospital, the manufacturer and the distributor of the defective instrument. All of the defendants blamed each other. The jury found for the defendants. The case was appealed, eventually making its way to the New Jersey Supreme Court.
The New Jersey Supreme Court sent the case back down for retrial, stating the jury was wrongly instructed. It was obvious to the Court that at least one of the defendants had to be responsible. The injured patient was under general anesthesia and could not have contributed to his injury. The Supreme Court went even further and held that, in a case such as this one, the burden of proof shifts to the defendants. No defendant can be dismissed from the case until each defendant comes forward and proves that he was not the culpable party. The plaintiff must recover a verdict from at least one defendant. This burden shift is now well-entrenched in New Jersey medical malpractice law and is termed the Anderson doctrine.