Personal Injury Law

Missouri Medical Malpractice - "Res Ipsa Loquitur" now a cause of action in Missouri medical negligence cases

By Benjamin J. Sansone, Esq.

If you are not a personal injury lawyer the first question you may have is what does Res Ipsa Loquitur mean and what does it have to do with personal injury law or Missouri medical malpractice?

Res Ipsa Loquitur is Latin for "the thing speaks for itself" and is a legal doctrine that dictates when personal injury occurs and there is no way the personal injury could have happened in the absence of negligence then the injured victim does not have to prove a specific act of negligence.

Res Ipsa under Missouri law is a is an evidentiary rule allowing the jury to infer that a loss or injury was caused by a negligent act of the defendant, without requiring the victim to prove a specific act or acts of negligence.

Generally, res ipsa was not allowed Missouri medical malpractice cases until just recently after the Missouri Supreme Court's 2008 ruling in Sides v St Anthony's Medical Center, 258 S.W. 3d 811 (Mo. 2008). The Sides court ruled res ipsa is possible for all med mal cases as long as the following res ipsa elements are present and a medical expert testifies to such:

(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care;
(b) the instrumentality involved was under the management and control of the defendant; and
(c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence.

Now tort deform advocates try to argue that res ipsa allows a "presumption" of negligence and allows personal injury lawyers to unfairly target doctors. This is absolutely not true. It allows only an "inference" which still must be proven by the Plaintiff as more likely than not to have been below the standard of care and the proximate cause of the injury or loss.

Obvious example of why this is necessary, if you undergo an operation and wake up with a surgical device left in your body you may not be able to prove the specific act (i.e. negligent doctor used the device, put it in the body, and forgot to take it out) because you were unconscious and maybe nothing about the device being left in you is in the records as you have no control over them. Clearly, someone was negligent and the personal injury medical malpractice victim should not be forced to prove a specific act of negligence if there is no evidence of it. A surgical tool is not left in your body without someone being negligent. There are many cases that are not as clear and obvious as the example above, however, if a medical expert testifies that a particular result does not occur in the absence of negligence then their is a submissible cause of action in Missouri for medical negligence.

Clearly, in the medical malpractice field this was a greatly needed victims' right issue, as health care providers possess much superior knowledge to what is going on in the operating room and the defendant is often the only witness to the negligence, which can easily be distorted or simply left out of the defendant's report. Trust me, this DOES happen more often than you may think. I have personally had doctors and nurses admit this to me off the record on several occasions.

Current Missouri medical malpractice case we are pursuing on a res ipsa theory as all the evidence of negligence was within the control of the defendant.

Full post as published by Missouri Injury Law Blog on May 05, 2009 (boomark / email).