Article: res ipsa loquitur radiology
December 22, 2020 | Uncategorized
Twitter ☰ Menu. Although the first time the term “res ipsa loquitur,” which literally means “the thing speaks for itself,” was used was in an obscure court proceeding demanding payment of a debt in the year 1616 in England [9], an event occurring 247 years later is far more germane to this article. The judgment of the Circuit Court is affirmed. They included droplet contamination of the field or instruments by the oropharyngeal flora of the operator, contamination of the commercially prepared spinal-puncture equipment, contamination of the contrast medium, cutaneous colonization due to incomplete disinfection of the skin, and inoculation into the spinal fluid by the spinal needle. Although the great majority of appeals court decisions throughout the nation affirm the applicability of the res ipsa doctrine in medical malpractice lawsuits with or without medical expert witness testimony, a recent in-depth analytic decision of the Pennsylvania Supreme Court raised substantial doubts about the widespread use of the doctrine in medical malpractice litigation. In appropriate cases it allows the claimant to establish a prima facie case by asking the court to infer from the fact the accident happened that the defendant must have been negligent.. I deem it my duty to without hesitation direct a verdict for the defendant. The maxim applies where an accident occurs in circumstances in which accident do not normally happen unless there has been negligence by someone. Something more must be shown. A major factor that seems to have driven the trend toward liberalizing the applicability of res ipsa in malpractice litigation involving physician–defendants was the increasing tendency of the courts to favor injured patients. The court of appeals affirmed the judge's instructions [11]: If a person erects a building upon a city street, he is under a legal obligation to take reasonable care that it shall not fall into the street and injure persons lawfully there. Where the injury could have happened in consequence of an accident unmixed with negligence and where it could equally have happened as the result of negligence but there is no evidence to show negligence, the plaintiff fails to sustain his case.... Negligence in the concrete is either positive or negative. Notes: Hi everyone! In his deposition taken during the pretrial discovery period, the expert witness retained by the plaintiff contended that S. bovis meningitis is an extremely rare event and was the result of the introduction of S. bovis bacteria into the patient's spinal canal during the myelography, most likely due to contamination of the contrast medium or spinal needle used for the myelography. Therefore, expert testimony is necessary to prevent a finding of liability for a simple mistake of judgment, failure of treatment, or accidental occurrence. The translation of the term is “the thing speaks for itself.”If you file a personal injury lawsuit regarding an accident or injury, you might become very familiar with the term. Second, medicine is not an exact science. As he was passing a shop owned by Mr. Boadle, a dealer of flour, a barrel of flour suddenly fell on Mr. Byrne from a window above the shop. Review. I think it apparent that the barrel was in the custody of the defendant who occupied the premises and who is responsible for the act of his servants who had the control of it. A review in the orthopedic literature in 1985 pointed out that the true incidence of acute bacterial meningitis after myelography is not known [4], but of the cases that were documented at the time, virtually all were due to a strep bacterium. The naked fact that the eye was in such a bad condition that it had to be extracted established neither neglect nor unskillfulness of the treatment. A medical malpractice lawsuit under the doctrine of res ipsa was filed against the obstetrician and the hospital, contending that the injury would not have occurred without acts of negligence on the part of the obstetrician or hospital staff. In medical malpractice cases, however, the common knowledge and everyday experience of lay jurors may be inadequate to support this inference [17]. Malpractice issues in radiology. 817.420.7000. The defendants appealed, claiming that the judge's instructions were in error. The judgment of the Circuit Court is affirmed. The following day the patient developed fever, neck rigidity, and a diminishing state of consciousness. He also added that the bacteria could possibly have already been in the patient's bloodstream and that the meningitis simply had not become symptomatic until the time of the myelography. In 1863, while the Civil War was raging on the American side of the Atlantic Ocean, a little-noticed incident occurred on the English side of the Atlantic that was destined to herald a new legal doctrine into the common law. Jason Stephens | September 9, 2020 | Personal Injury “The thing speaks for itself.” That is the translation of the Latin term res ipsa loquitur.. Why would you care about this Latin term if you were injured in a car accident, motorcycle crash, pedestrian accident, slip and fall or other personal injury accident? Judges began permitting res ipsa when a medical expert would simply testify that on the basis of his or her expert knowledge, the patient's injury probably would not have occurred in the absence of negligence on the part of the defendant–physician [15]. Res ipsa loquitur In the treaties on Medical Negligence by Michael Jones , the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. In medical malpractice cases, the courts are generally reluctant to apply res ipsa in lawsuits involving error in diagnosis or the choice of a method of treatment [15], the rationale being that the physician should not be required to explain why any particular diagnosis was not correct or why any particular scientific treatment did not produce the desired result. Careful examination revealed that the laceration had severed two flexor tendons, a portion of the digital nerve, and extended into the bone of the finger. The absence of care may fairly be presumed from the fact that there was a defect from which the accident had arisen. The performance of a paravertebral nerve block involves complex issues of anatomy, medical science, invasive procedures, and precision performance. No elaborations or argument needed. “Res IpsaLoquitur” Literally means: “The thing speaks for itself” The “thing” = the “fact(s)” It is a not a rule/principle of substantive law, but rather a rule of evidence affecting the onus of proof… premised on common sense, fair play and justice. Er führt nicht generell zu einer objektiven Beweislastumkehr, sondern berechtigt lediglich das Gericht bzw. [This is] a case to which the maxim res ipsa loquitur is applicable, the principle of which is that whenever it is a defendant's duty to use reasonable care to keep a structure in a proper condition and it is out of condition and an accident happens, it is incumbent on him to show he used reasonable care and diligence. After completion of the depositions of both expert witnesses, the defendant–radiologist, and other individuals who were involved with the myelogram CT procedure, the defense attorney moved for dismissal of the lawsuit, asserting that the plaintiff failed to present sufficient evidence to support the res ipsa theory. In the face of liberalization of a test for res ipsa loquitur, there can be no justification for rejection of the doctrine in this case. Courts across the nation have had to grapple with the question of whether to permit expert medical testimony to be used to educate the jury as to the likelihood that a medical adverse event would take place without negligence. Thus, we cannot approve substitution of such an obvious inequity for a perceived one. As will be seen later in this article, this criticism of res ipsa, written so eloquently 115 years ago, persists today by many in the judiciary. COVID-19 NOTICE: Offering “virtual” or phone consultations while remaining safely in your home. Res Ipsa Loquitur. Many legal observers claim that there is an inherent unfairness in the res ipsa doctrine. In this case, the barrel had rolled out of the warehouse and fallen on the plaintiff; how could he possibly ascertain from what cause it occurred? Res ipsa loquitur. Notwithstanding that the court dismissed the res ipsa case that is discussed at the beginning of this article, the doctrine of res ipsa was invoked quite successfully by a plaintiff in a medical malpractice jury trial held in a Chicago courtroom in early 2009 [24]. The doctrine of res ipsa loquitur, no matter how ingeniously stated, has no application to malpractice cases.' The frequency with which the res ipsa doctrine is being invoked in medical malpractice litigation appears to be increasing, not at a rate that is necessarily alarming but at a rate, nevertheless, sufficient to warrant awareness on the part of radiologists. The jury found in the plaintiff's favor, awarding $465,000, but in 2003, the verdict was reversed by the Pennsylvania Supreme Court [21]: Traditionally, a plaintiff must present medical expert testimony to establish that the defendant–physician fell short of the required standard of care and that the breach proximately caused the plaintiff's injury. In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. The fair presumption is that the fall occurred due to the ruinous condition of the building, which could scarcely have escaped the observation of the owner. Der Res ipsa loquitur Grundsatz (lat. By the time his family brought the patient to the hospital's emergency department, he was unresponsive. While walking on the sidewalk adjacent to a building called the Hamilton Market in the city of Brooklyn, a woman named Mullen was knocked down and injured when suddenly part of the building's walls fell outward. The plaintiff in a res ipsa case is required to allege several elements. A physician is not a warrantor of cures. As noted previously, the jury's determination as to whether the res ipsa doctrine should apply in a given case may be based on expert testimony. Third, the practice of medicine is a complex and experimental field. Thus, there are two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have occurred without negligence and the second, the reliance upon expert medical knowledge that the event would not have occurred without negligence. The first allegation is that in the normal course of events the patient injury on which the lawsuit focuses would not have occurred if the defendant had conformed to the standard of medical care. The performance of a paravertebral nerve block involves complex issues of anatomy, medical science, invasive procedures, and precision performance. The condition of the plaintiff cannot but awaken the sympathy of everyone, but I must hold that there is no evidence before the court legally sufficient to support a verdict in her favor. 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