Negligence Claims




Negligence Claims

When satisfying a negligence claim, it is often difficult to prove the exact time or cause of the affected person’s trauma. It is then when an old Latin phrase comes in handy, res ipsa loquitur.

Res ipsa loquitur translates to “the thing speaks for itself.”

Establishing Negligence

The process of establishing negligence 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 that is being charged with misconduct.

The expert must testify as to what the defendant should have done under applicable professional standards.

Medical organizations typically discourage those in the medical professions from testifying in negligence claims against one another making it difficult to find experts willing to testify regarding the misconduct of a peer.

In addition, many insurance companies providing coverage to health care providers require that they not testify against other healthcare professionals in negligence claims who are insured by the same company.

Proving a Negligence Claim

Proving a negligence claim is also difficult because the defendants are often the ones who write the medical reports that 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, the way they choose to describe the events are often not descriptive of what truly happened.

Not Conscious when Neglignece Occurs

The legal system recognizes that plaintiffs face certain difficulties in proving medical negligence claims, due to the fact that they are often not conscious when the negligence occurs.

If a patient is 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, he or she may invoke the res ipsa loquitur a legal doctrine.

This implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone's negligence.

Res Ipsa Loquitur

To call upon this doctrine successfully in a negligence claim, a plaintiff has to demonstrate a few things.

First, they must show that evidence of the actual cause of the injury is not obtainable.

Second, that the injury would not normally occur in the absence of negligence.

Next, the plaintiff must show that they were not responsible for his or her own injury.

Then they must show the defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury.

Finally, they must show the injury could not have been caused by any instrumentality other than that over which the defendant had control.

Burdon Placed on Defendant

Upon the successful invoking of this doctrine the burden is placed on the defendant to show that he or she was not negligent.

An unconscious patient certainly cannot be considered responsible for this type of injury, and it would have been caused by the operating physician and staff, who had exclusive control over the surgical tools.

Negligence Claim

In a negligence claim invoking res ipsa loquitur, the defendants, rather than the plaintiff, do the bulk of the investigation and finger pointing, which is quite appropriate given the circumstances. If you have a potential negligence claim, contacting a personal injury lawyer can help you put the burden on the healthcare providers. After all, it’s not your fault and you shouldn’t have to do all the work.

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