More than £1.1bn has been shelled out by just 20 NHS trusts in the past five years to pay for legal costs and compensation in medical negligence cases, this based on a report by The Telegraph. In total, NHS trusts have spent at least £4.5 billion for medical blunders in the past five years.
Clinical negligence is a growing concern not only for medical professionals, but patients as well. The law recognises that proving medical negligence is difficult, but the legal doctrine of “res ipsa loquitur” may make it easier for some plaintiffs.
When the Evidence Speaks for Itself
“Res ipsa loquitur” is a Latin phrase meaning “the thing speaks for itself”. In terms of medical negligence, the doctrine can be used in cases where the medical professional’s treatment was way below the standard of care that negligence is assumed.
In simpler terms, it means that as a plaintiff, you can use circumstantial evidence to infer negligence. You would not have been injured had it not been for the medical professional’s negligence — the injuries speak for itself.
Invoking Res Ipsa Loquitur
Medical professionals owe patients a duty of care. Cardiff-based law firm Secure-Law.co.uk explains that medical negligence claims have two important elements: breach of duty and causation. To invoke this doctrine in medical malpractice cases, a plaintiff needs to prove both. More specifically, a plaintiff needs to show that:
- Evidence regarding the actual negligence and cause of injury are not obtainable
- The medical professional has superior knowledge or means to obtain said evidence
- The injury or harm does not occur normally without a doctor’s negligence
- They (the plaintiff) were not responsible for the harm or injury
- The medical professional (defendant) had exclusive control over all equipment, conduct, or instruments that caused the injury
- The defendant was responsible for the plaintiff’s welfare at the time of the injury
If the plaintiff successfully invokes the doctrine — that is, they have established the above mentioned elements — there’s a better chance that they can establish liability under “res ipsa loquitur”.
In English tort law, “res ipsa loquitur” is a strong inference that favours the plaintiffs. While the doctrine may shift the burden of proof from the plaintiff to the defendant, it does not fully reverse it. This is why a consultation with an attorney is still the best approach to determine if you have a strong medical negligence claim.