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“Res ipsa loquitor” is a Latin phrase meaning, “the thing speaks for itself.” As a legal doctrine, it can apply to personal injury or wrongful death cases when it is apparent that the injury would not have occurred without some negligence on the part of the defendant. For instance, if a person is walking by a construction zone and is struck on the head by a brick falling from the scaffolding above, it may not be necessary to prove that a particular person was negligent in dropping the brick or causing it to fall. Rather, it may be enough to say that the defendant contractor or construction company had sole control of or responsibility for the scaffolding at the time, and the accident would not have occurred unless someone on the scaffold acted negligently.
In cases of medical malpractice, res ipsa loquitor is used when it is discovered that a foreign object, such as a clamp or sponge, was left inside of the patient’s body after an operation; that is something that would not happen unless a doctor or nurse in the operating room were negligent. Res ipsa loquitor could also be applied where a patient woke up from surgery with a new and unexplained injury far away from the site of the operation, or if the wrong operation were performed on the wrong patient or wrong side of the body.
A common defense raised by doctors accused of medical malpractice is to claim that the plaintiff somehow caused the injury himself or herself, or that some other person or action intervened to cause the injury. But this defense is hard to raise in the case of an injury occurring in the O.R., where the patient is sedated and can’t harm himself or herself in any way, and the patient is under the exclusive control of the doctors or hospital during the operation.
Utilizing the principle of res ipsa loquitor only helps to prove some elements of a negligence claim – namely the breach of a duty owed by the defendant. The plaintiff is still required to prove that he or she was injured, and that the injury was caused by the defendant’s negligent conduct. Moreover, res ipsa loquitor is only a presumption which may be overcome by the defense. No matter how clear your case may seem, it is still important to retain a skilled and knowledgeable personal injury attorney who can prepare and present a persuasive case with the best chance for a favorable verdict or settlement. In New York City, contact Leandros A. Vrionedes, P.C. for a free consultation.