We have already seen how crucial experts are even before the case is filed, for example, the Virginia Certification requirement. If the case goes to trial, we will hire medical experts to testify concerning any of the four elements of the medical malpractice case – a duty to treat the patient, a breach of the standard of care, a causal relationship between the negligence and the injury and the extent of the injuries that occurred. Unless the medical malpractice is blatantly obvious.
The Obvious Medical Malpractice Exception
There is one important exception to hiring experts. We call this the Res Ipsa Loquitur exception. This Latin term means “the thing speaks for itself.”
If the Res Ipsa applies, no expert testimony is needed to establish either the breach of the standard of care or causation. In fact, if the plaintiff’s lawyer shows the judge that Res Ipsa applies, then the court instructs the jury to presume that medical malpractice has occurred. Now, the defendant physician has to show that it did not.
Usually, the plaintiff needs to prove the physician was negligent. But with Res Ipsa the physician has to show that he wasn’t! The trial roles are reversed. So, you can see how powerful Res Ipsa can be.
An Example of Res Ipsa Loquitur
The best way to understand Res Ipsa is to give an example of it.
In a real Virginia medical malpractice case called Hayes v. Jeffrey-Coker, 50 Va. Cir. 52 (Alexandria Cir. Ct. 1999), the plaintiff’s face was burned while she was under general anesthesia for abdominal surgery. Because she was under anesthesia, she could not determine who might have been at fault. All of the health care providers in the operating room at the time, both nurses and physicians, denied that they were at fault.
The Court decided that the principle of Res Ipsa should apply. In other words, only the medical professionals in the room that day could know what happened. It was unreasonable to make the plaintiff have to prove who was negligent. And, it was obvious medical malpractice. So, the new presumption became that someone in the operating room was negligent that day. Now, the medical professionals have to prove that they did not cause the patient’s injury. Res Ipsa switched around what lawyers call, “the burden of proof.” Res Ipsa gave the plaintiff a very strong upper hand before the trial even started!
Are Experts Necessary In My Medical Malpractice Case?
Unfortunately, there are a limited number of cases that fit the facts that will support using Res Ipsa as a method to avoid the need for experts. That is why it is important to have a legal team that recognizes the fact patterns that might support a legal try at using Res Ipsa. The lawyers at Osterbind Law have the knowledge and experience to do just that.
If you believe that you have been injured by obvious medical malpractice, call our office. Let us show you how our team works together to give you the best chance of winning your case.
