Gregg Hollander Injury Lawyer Florida

Res ipsa loquitur is a Latin phrase that can be translated in English as “the thing speaks for itself.” It is also used in the law to prove negligence by circumstantial evidence when there is not enough evidence to prove actual negligence. To use res ipsa loquitur, there must be no other explanation for the injury except negligence.

What is required to prove negligence using res ipsa loquitur?

To prove negligence using res ipsa loquitur, three things must be shown: 

  1. The injury is of a kind that does not generally occur without negligence; 
  2. The injury was caused by something entirely within the defendant’s control; and
  3. The injured party did not contribute in any way to the cause of the damage.

Res ipsa loquitur can be used in any kind of case involving negligence, including premises liability cases and medical malpractice cases. 

The doctrine of res ipsa loquitur first came about in a case where a man was hit and severely injured when a barrel fell out of a warehouse’s second-story window. In that case, the attorney for the owner of the warehouse argued that the man could not prove negligence since he could not prove what happened before the barrel fell out of the warehouse window. The attorney for the injured man argued that barrels don’t usually fall out of second-story windows. The fact that the barrel rolled out of the window itself proved that someone must have been negligent. 

Using Res Ipsa Loquitur in Medical Negligence Cases

One classic modern example in which an attorney might use the res ipsa loquitur doctrine is when a surgical sponge is left in a patient. In medical negligence cases, to use res ipsa loquitur, the attorney for the injured party will have to prove: 

  1. That the patient’s injury was not an expected complication of the procedure;
  2. The patient’s injury does not usually happen unless someone has been negligent; and
  3. The defendant was responsible for the patient’s welfare at the time the injury was sustained. 

The advantage of using res ipsa loquitur in this kind of case is that no expert is needed to testify as to the usual standard of care for that medical procedure. To what other kind of situations might res ipsa loquitur apply? 

One example would be a young athlete who is otherwise healthy whose doctor orders an ankle x-ray. After the x-ray technician leaves the room, the athlete has a dislocated knee. A dislocated knee is not an expected compilation of an ankle x-ray.

There is no reasonable explanation except that the technician mishandled the patient or failed to properly stabilize the patient before the x-ray. And, the technician was responsible for the patient’s welfare at the time of the injury.

Res Ipsa Loquitur and Birth Injuries

Another type of case in which “the thing speaks for itself:” birth injuries. Certain conditions, like cerebral palsy, are often linked to complications during labor. Even a competent and skilled OB-GYN can provide negligent medical care that leads to permanent injury. Permanently debilitating conditions are not expected in delivery. An experienced birth injury attorney can help you investigate whether a particular condition only happens as a result of negligence. 

Res Ipsa Loquitur and Nursing Home Neglect

Also, if you have a loved one who has suffered an unexpected injury or condition while being treated in a nursing home, they may be the victim of nursing home neglect or abuse. 

Res ipsa loquitur may be used to show negligence when a nursing home resident sustains: 

Since these injuries do not normally occur in the context of a nursing home in the lack of negligence, res ipsa loquitur could be used to prove negligence in these kinds of cases. 

Using the doctrine of res ipsa loquitur, an experienced personal injury attorney can help you get a verdict or settlement that compensates you for your injuries. Even if you feel that you can’t possibly prove negligence, the facts of your case might be that “the thing speaks for itself.”