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Application of Res Ipsa Loquitur in Medical Malpractice Cases in Texas

personal_injury_law-300x215Res Ispa Loquitur is one of those cool old latin legal terms that has made its place in modern law and is here to stay. It is one of the more useful ones, as well, especially in medical malpractice claims.

The term Res Ipsa Loquitur literally translated means “the thing itself speaks”. In law, it means that the occurrence which brought about the injury would not, and could not, have happened absent a negligent act. It is a way of presuming negligence without having to prove it with a lot of evidence. What is a good example of that? A sponge. Yep, a sponge.

….. A sponge that was left in a person’s abdomen during surgery that was left there with “no medical justification for leaving it there.” Yeah, Res Ipsa Loquitur definitely should apply there. Leaving a sponge or other object in a person’s body after surgery can lead to infection and even death. The fact that a sponge or other foreign object was made to remain in a person’s body after surgery can only have happened because someone forgot to remove it. Therefore, the fact that it is even there is due to someone, namely the doctor conducting the surgery, was negligent in failing to remove it. Period. End of story.

Okay, but what do I need to show to prove that Res Ipsa Loquitur should apply in MY medical malpractice case?

Courts in Kaufman, Rockwall and other surrounding East Texas counties, like Smith county, all have to apply the same law. The law in Texas we must first look to is chapter 74 of the Texas Civil Practice and Remedies Code. It provides that Res Ipsa Loquitur only applies in Medical Malpractice “where it has been applied by the appellate courts of this state as of August 29, 1977.” Tex. C. Prac. & Rem. Code 74.201.

As of 1977, Res Ipsa Loquitur had only been applied in three recognized areas of health care liability claims and they are (1) negligence in the use of mechanical instruments, (2) operating on the wrong body part, and (3) leaving surgical instruments or sponges inside the body.  Kingwood Pines Hosp., LLC v. Gomez (App. 14 Dist. 2011) 362 S.W.3d 740. That means that if a surgical sponge or other foreign object was left in your body after surgery and you were injured as a result, you not only have a medical malpractice claim against your medical provider(s), but you will be able to utilize Res Ipsa Loquitur in order to lower you burden of proof in court.

HOW DO I USE RES IPSA LOQUITUR IN ORDER TO LOWER MY BURDEN OF PROOF AT TRIAL?

Res Ipsa Loquitur is a question that may be presented to the jury where evidence of both of the following factors have been presented: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and

(2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990).

Demonstrating that a sponge was left in your body and producing evidence that the doctor you have sued was in control of the sponge or other object at the time of the accident all you need to show and the negligence of the doctor is presumed. However, this does not get you around the expert report requirement for medical malpractice claims. However, if you produce enough evidence to demonstrate that Res Ipsa Loquitur should be applied, then proving your case once you get to trial becomes much simpler.

GuestandGrayLogoHave You Been Injured As a Result of Medical Negligence in the State of Texas? Call Guest and Gray, P.C. Today!

Guest and Gray, P.C. is the highest rated local law firm in Rockwall and Kaufman counties. Our main office is in Forney, Texas, but we have an office in Rockwall to support our Rockwall county clients. Our firm is quickly growing and serves all surrounding North Texas, including Fort Worth to Dallas, Rockwall to Denton and all eastern counties of Texas. If you have been injured in an automobile accident, you need to call Guest and Gray, P.C. Today! CALL NOW! (972) 564-4644