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Res Ipsa revisited
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A recent article in Clinical Orthopaedics and Related Research addressed the development of a legal doctrine known as res ipsa loquitur, which translated means “the thing itself speaks”, but this is usually applied as “the facts speak for themselves”. The article examined how the development of legal principles, such as res ipsa, can reflect competing social values that courts are sometimes confronted with in legal cases. In this article, we examine the res ipsa doctrine with the goal of identifying practical guidelines that may be useful in understanding medical malpractice litigation.
Res ipsa applies in legal cases in which the facts related to the injury itself can allow a reasonable inference of negligent conduct, absent further proof. In practical terms, the plaintiff would argue, for example, that a poor outcome from medical treatment could not have occurred, but as a consequence of substandard conduct. With the burden of proof thus dispensed with, the case would go to the jury to determine damages, i.e., the application of res ipsa makes it easier for the plaintiff to prevail.
From the view of the medical practitioner, the res ipsa doctrine appears to be unfair since poor outcomes can occur, even when an operation is done flawlessly. Also, it may sometimes be impossible to determine exactly why an adverse event manifested. In some situations, such as the “time-out” procedure before the incision, with multiple parties taking ownership of the process, it may be difficult to pinpoint responsibility on one party. Why then should a court apply the res ipsa rule to allow an inference of negligence?
B. Sonny Bal
From the judicial viewpoint, there are situations when a medical error and patient injury are so egregious that it is unfair to burden the plaintiff with proving negligence. A defendant can always assert that all standard safety procedures were complied with, or that adverse outcomes can occur despite the exercise of reasonable care. The mechanics of how res ipsa is invoked by courts to compensate injured patients, when the burden of proof may be difficult or impossible, or proof of negligence may simply not be necessary, are discussed.
South African experience
The res ipsa doctrine was in the news recently, when a South African court opened the door for its application in medical negligence cases. As in the United States, the impact of South African judicial decision is that if certain events can reasonably create a presumption of negligence, and the defendant fails to provide sufficient evidence to the contrary, a finding of negligence will automatically result. For many years, South African courts had refused to apply res ipsa in medical negligence lawsuits, applying instead the reasoning in Van Wyk v. Lewis 1924 AD 438.
In Van Wyk, the surgeon performing a difficult abdominal operation at night left behind a surgical swab that went undetected for a year. In the ensuing litigation, the surgeon testified that the usual hospital practice was for him to make a careful check for any retained foreign bodies, and that both he and the nurse had done that. Furthermore, the surgeon testified that consistent with the usual practice, he had relied on the nurse to count and check the swabs. Both he and the nurse were satisfied that everything was properly accounted for before the patient was sewn up. They could not explain why the swab turned up in the patient’s abdomen a year later.
Accepting this defense, the Van Wyk court said that, contrary to the pleas of the plaintiff, negligence could not be inferred from the mere fact that a swab was retained in the patient; the plaintiff had to prove that negligent conduct led to the occurrence. The court remarked that the defendant was required to exercise all reasonable care and skill, and that he had done so in following the usual practices at the hospital. It was up to the plaintiff to prove otherwise.
South Africa overturned Van Wyk in November 2014, in the case of Goliath v. The MEC for Health in the Province of Eastern Cape. Goliath also addressed a retained surgical swab left in the patient’s abdomen by medical staff under the employ of the Member of the Executive Council (MEC) for Health, a regional health care delivery body in South Africa. Contrary to Van Wyk, the Goliath court held that there was sufficient evidence which gave rise to an inference of negligence on the part of one or more of the medical staff under the employ of the MEC.
Res ipsa may be invoked in cases such as these, in which a court can reasonably infer negligence simply by the circumstances of the case. The reasoning of the courts, such as Goliath, in applying res ipsa is that if proper procedures were truly followed, as the defense will understandably contend, then there is no reason why the adverse event should occur. A related argument in favor of res ipsa is that if the defense position is to be believed, i.e., that everything possible was done to avoid the complication, then all injured plaintiffs in similar situations would be routinely denied relief.
Historical roots
Res ipsa is mentioned as a legal axiom in the Pro Milone speech of 52 B.C., orated by Cicero in support of his friend Titus Annius Milo, who was accused of murder. Centuries later, the phrase from Cicero was quoted by Sir Charles Edward Pollock when he adjudicated the 1863 English case Byrne v. Boadle, after which res ipsa became the tag for a new common law doctrine. In Byrne, a barrel of flour fell from a second-story loft and hit the plaintiff. The plaintiff could not directly prove that the person responsible for the barrel had breached his duty of care. Accordingly, the lower court found in favor of the defendant, but on appeal, the appellate court reversed, holding that the fact of the accident itself provided sufficient circumstantial evidence to establish the breach of a duty of care.
Lawrence H. Brenner
Judge Pollock said the following: “I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident … It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.” The Byrne ruling was based on the reasoning that somebody must have had control of the barrels, such that a single barrel could not have spontaneously rolled off the building. In the years that followed, the application of res ipsa under the common law required that “the instrumentality or agent which caused the accident was under the exclusive control of the defendant.”
Res Ipsa and medical negligence
The logic set forth in Byrne would be applied in a medical case in the 1944 U.S. ruling Ybarra v. Spangard. After a routine appendectomy, the patient woke up with neck and back injuries that arose from improper patient positioning against a hard surface. Applying res ipsa, the Supreme Court of California said “[w]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.” In other words, the presumption of negligence applied to all caregivers in the OR at the time when the patient was positioned for surgery, unless they could argue otherwise.
Res ipsa evolved further with subsequent legal rulings. In the 1957 case of Gray v. Wright, a 7-inch hemostat was left in the patient during gall bladder surgery, leaving the patient in chronic pain until the device was discovered 6 years later on an X-ray. A verdict in favor of the patient was reversed by the Supreme Court of West Virginia because the statutes of limitation had run out, and the patient could not prove that the physician concealed knowledge of his error. In the years that followed, the “guilty knowledge” requirement of Gray slowly disappeared from U.S. jurisprudence, to be replaced by the “discovery rule” by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence, thereby opening the door for res ipsa to be applied in similar cases.
Discussion
Today, many decades after the Gray ruling, leaving a surgical instrument behind in a patient is medical malpractice, provable without expert testimony, in almost every jurisdiction. The modern application of res ipsa usually relies on a two-pronged inquiry, i.e., whether the accident is the kind usually caused by negligence; and whether the defendant had exclusive control over the instrumentality that caused the accident. If these requirements are met, the res ipsa doctrine allows an inference of negligence to be made, although in most cases, it does not necessarily mean a directed verdict, i.e., summary judgment in favor of the plaintiff.
Ultimately, legal doctrines such as res ipsa reflect the development of jurisprudence tools that are needed to balance competing interests. On the one hand, fairness and equity demand that doctors who take appropriate precautions, and following established rules to ensure patient safety should not be held negligent when patient injury occurs. However, if this rule is taken too far, injured patients would be routinely denied compensation. If a pre-incision time-out procedure is followed diligently and documented properly, and wrong-side surgery still occurs, should the medical staff in the OR be held liable? To fairly compensate patients and ensure judicial economy, in situations such as these, where the outcome itself can reasonably allow a court to infer negligent conduct, the res ipsa doctrine continues to be invoked.
References:
Bal BS, et al. Clin Orthop Relat Res 2015;doi: 10.1007/s11999-014-4040-9.
Eaton v. Eaton, 575 A2d 858 1990.
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.