RES IPSA LOQUITUR, Medical Expert Witnesses, and your Medical Legal Case

Res ipsa loquitur is a Latin phrase meaning “the thing speaks for itself”. It is a legal doctrine which is sometimes used by plaintiffs in negligence actions and other medical legal cases, including medical negligence, and sometimes obviates the need for medical expert witness testimony. Accordingly, medical negligence may be presumed if the defendant hospital, for example, had exclusive control of whatever caused the injury. This may be so even in the absence of specific evidence that a negligent act was committed. It suggests further that in the absence of negligence, the injury would not have occurred. The burden of proof is thus shifted to the defendant to rebut the presumption of negligence.


For example, during a surgical procedure, a surgical sponge is left in the patient’s body cavity. The plaintiff can reasonably argue that the hospital should have inventoried its supplies and realized that a sponge was missing even though there is no witness to the miscount or documentary evidence of a missing sponge. The fact that the sponge is found in the patient’s body and the patient suffered injury as a result may be sufficient to argue negligence using the res ipsa doctrine.

However, there is always a caveat and one notable one is that just because something goes wrong during surgery does not necessarily permit successful invocation of the res ipsa doctrine. In a recent medical malpractice case, plaintiff invoked the res ipsa doctrine in the migration of a surgical graft during endoscopic thoracic disc surgery and fusion. However, graft migration is a recognized complication of this surgery. Judgment was for the defendant because graft migration does not of itself constitute a negligent act.

Copyright © 2020 - & Dr. Barry Gustin