Res Ipsa Loquitur

Res Ipsa Loquitur

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Since medical organizations generally discourage those in the medical professions from testifying against one another, it is difficult to find experts who have the integrity to come forward and testify as to misconduct by one of their peers. In addition, many insurance companies providing coverage to health care providers require that they not testify against other providers who are insured by the same company. Thus, only with the assistance of an experienced medical malpractice attorney can a plaintiff be ensured of obtaining all of the relevant evidence and proving all of the requisite elements that will help the plaintiff recover his or her damages.

Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Res Ipsa

Fortunately, the law also recognizes that plaintiffs face certain difficulties in proving medical negligence, due in no small part to the fact that they are often not conscious when the negligence occurs. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as “res ipsa loquitur.” Translated, this Latin phrase means “the thing speaks for itself,” and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone’s negligence.

To invoke this doctrine successfully, a plaintiff has to show that:

  • Evidence of the actual cause of the injury is not obtainable;
  • The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
  • The plaintiff was not responsible for his or her own injury;
  • The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
  • The injury could not have been caused by any instrumentality other than that over which the defendant had control.

Res Ipsa

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. A classic example of the type of case in which this doctrine arises is where a sponge or other medical instrument is left inside a person following surgery. Typically, a medical report will not state “Dr. Smith left forceps in patient’s abdomen,” and there may be no recorded proof of how or why the negligence occurred. Yet clearly, a surgical instrument would not be left in a patient in the absence of someone’s negligence. Also, an unconscious patient certainly cannot be deemed responsible for this type of injury, and it would have been the operating physician and staff who had exclusive control over the surgical tools.

Thus, the burden falls not on the patient to prove who left the surgical instrument inside him or her, but on the individual health care providers to try to establish that it was not their negligence that resulted in the injury. If an attending physician, who is an independent contractor rather than an employee of a hospital, can demonstrate that he left the operating room and instructed a nurse, who was a hospital employee, to remove and account for all surgical instruments before the patient was closed, the hospital might be held liable for the negligence of its employee. In any event, the co-defendants rather than the plaintiff do the bulk of the investigation and finger-pointing, which is quite appropriate given the circumstances.

Role of the Physician

Understanding Informed Consent

In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.” Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed. If this duty is breached and injuries result, the patient may have a legal claim for damages. An experienced medical malpractice attorney can help you determine whether you have a claim and represent your interests throughout the legal process.

The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided.

In many situations, the failure to obtain informed consent is a form of medical negligence, and may even give rise to a cause of action for battery. In certain situations, informed consent is an absolute necessity. For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.

The Role of the Physician

Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the physician should cover:

The patient’s diagnosis, if it is known;

  • The nature and purpose of the proposed treatment or procedure, as well as the procedure’s likelihood of success;
  • The benefits and risks of the proposed treatment or procedure;
  • The alternatives to the proposed treatment or procedure;
  • Alternatives to the treatment or procedure should be discussed regardless of their cost and regardless of whether they will likely be covered by the patient’s health insurance;
  • The risks and benefits of an alternative treatment or procedure;
  • The risks and benefits of not receiving or undergoing any treatment or procedure.

Physician

A physician should also ensure that patients understand what they’re hearing. In fact, some hospitals now require physicians to participate in courses on communication skills.

The patient, or the patient’s legally authorized representative consenting to the treatment on the patient’s behalf, must sign and date the informed consent documents, and must be given a copy of the informed consent documents once they are signed and dated. A copy of those documents should also be placed in the patient’s file.

The Role of the Patient

Although a physician is required to inform a patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions of the physician if they do not understand, or if they would like more detailed information.

Types of Consent: Express and Implied

Informed consent may be either “express” or “implied.” Express consent is given in writing or verbally. If a patient’s consent is written, it should include the name of the health care professional who discussed the proposed treatment with the patient, the name of the health care provider who is to perform the procedure, and the date, time and location where the consent form was signed.

Consent not given by a patient in writing or verbally, but understood from the circumstances surrounding the procedure or treatment at issue, is known as implied consent. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.

Situations in Which Informed Consent May not be Necessary or May be Implied

Situations Not Involving Medical Procedures or Treatment. Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a “treatment” or “procedure,” to some people (especially those who are uncomfortable in physician’s offices), it’s rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.

Emergency Situations: In emergency situations, there is not always time to obtain a patient’s informed consent, or the patient may be unconscious and unable to communicate. If an emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.

Obtaining Consent from Incompetent Individuals and Minors

When a competent adult seeks medical treatment, the process of obtaining informed consent may seem relatively easy. However, in situations where mentally disabled individuals or children need treatment, the ability to obtain informed consent becomes more difficult. In these situations, serious questions arise concerning who is able to give informed consent for those individuals.

In most cases, a mentally disabled person has an appointed guardian authorized to make medical decisions and give informed consent for that individual. Medical providers need to make sure that when they obtain informed consent for incompetent individuals, they have obtained it from the correct person or persons.

Physician

In most situations, parents can give informed consent for treatment for their minor children. However, some states allow young adults under eighteen to play a more active role in their medical care and treatment, including the process of informed consent. Not every teenager is capable, however, of making informed consent decisions under these laws. Instead, most states focus on “mature minors” sufficiently ready to understand the nature and consequences of treatment. In those states, such young adults may be able to provide consent without consulting with their parents. For example, some states have passed specific laws that allow for minors to consent, without parental knowledge or approval, to health care treatments related to substance abuse, mental health, and sexual activity.

Medical Malpractice

Wichita Falls Medical Malpractice Attorneys

The Experienced Texas Medical Negligence Lawyers 
When a doctor’s oversight during surgery, a nurse’s neglect or an anesthesiology error causes injury, illness or wrongful death, the assistance of an experienced personal injury and medical malpractice lawyer is essential.

Serving victims of medical malpractice in Dallas and Wichita Falls, from Texas to Oklahoma, with a group of competent and seasoned Lawyers

Our law firm aggressively protects the rights of victims of medical negligence, and their families. Due to new legislation that places a high burden of proof on the plaintiff and at the same time severely limits what they can recover if they manage to prove their case, we continue to advocate for medical malpractice claims in the north Texas region. We don’t take every case. But we do take the cases we truly believe in.

If you or someone you love has suffered a catastrophic, life-changing injury, or if a family member has suffered wrongful death because of the negligence of an attending physician or other medical professional or facility, call our law firm today, toll free: 866-492-9554. Your initial consultation is free of charge.

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When Medical Malpractice Strikes, Our Law Firm Strikes Back

Our experienced Wichita Falls medical malpractice lawyers view the legal profession as a helping profession. Look to us for forceful legal leadership when you or a relative becomes injured or ill during a hospital stay as a result of:

  • Misdiagnosis or failure to diagnose
  • Anesthesia error
  • Birth injury
  • Brain injury
  • Emergency room error or failure to treat
  • Medication error
  • Cosmetic surgery error
  • Surgical error

If you wish to pursue a medical malpractice action, you should contact our attorneys at the very first sign of negligence, in order to allow time to properly evaluate and investigate your situation before a two-year statute of limitations runs in your case.

Our law firm handles medical malpractice claims on a contingency fee basis. It costs you nothing to get us started on your case. We collect an attorney fee only if you receive compensation from those responsible for your injuries.