Catherine Radford explores the ramifications of applying Res Ipsal Loquitur (or the matter speaks for itself) when assessing injury claims.
…and when they do the patient seeking compensation for an injury, if he is to succeed, will need to prove that it is more probable than not that the Defendant has been negligent and has caused the injury.
However, where the Claimant does not know how his injury has occurred he may apply the evidential principle of res ipsa loquitur or “the matter speaks for itself”. In that case the Claimant asserts that unless the Defendant can show evidence to the contrary the unexplained injury should lead the Court to infer that the Defendant was negligent.
Res ipsa is most likely to be successfully pleaded in cases where it is obvious, even without expert evidence, that there has been negligence for example where the wrong limb has been amputated, a medical instrument has been left in the operation site or a patient wakes from anaesthesia during surgery (1).
However, often claims are not that straightforward and the Claimant who pleads res ipsa will rely on expert evidence to support the contention that his injury would not ordinarily occur in the absence of negligence.
Just because something has gone wrong during the Claimant’s treatment, which cannot easily be explained, it does not necessarily mean that there has been any negligence. In defending an allegation of res ipsa it is important to bear in mind that although the principle seeks an inference of substandard care the Court will not presume there has been negligence and must consider all the evidence before making a finding for either party. However, where res ipsa is pleaded the burden of proof is somewhat shifted to the Defendant to show that there was no negligence and a successful defence will depend on there being sufficient evidence to rebut or refute the inference of negligence.
Defending a claim of res ipsa, whilst not always easy, can be done in two ways;
However, if it is impossible to explain how the injury happened or it is a very rare outcome of treatment then Judge will exercise great care in assessing the evidence before making a finding for the Claimant under the principle of res ipsa. This situation occurred in the Bevan Brittan (formerly Bevan Ashford) case of Delaney v Southmead HA (2) where the Claimant sustained a brachial plexus injury whilst undergoing a cholecystectomy. It was alleged that the anaesthetist had shown a lack of care in both the site of administration of anaesthesia and also in positioning the Claimant’s arm during surgery. The Court of Appeal ruled that the anaesthetist had shown that he had taken all reasonable care of the Claimant, thus rebutting the inference of negligence, and that no explanation for the Claimant’s injury was found. Accordingly the Claimant was not entitled to compensation.
To avoid, and if necessary defend, claims of res ipsa it is important to show evidence of reasonable care by:
Finally, all steps should be taken to ensure that evidence which
may help to defend the claim is safely preserved such as:
the patient’s medical records
current contact details of all staff involved at the relevant time
any information about provision and, if relevant, maintenance of equipment involved in the Claimant’s treatment
if a foreign body is found in an operation site this should be kept until any claim is resolved.
1. Ratcliffe v Plymouth and Torbay HA  Lloyd’s Rep Med
162 (Bevan Ashford).
2.  6 Med LR 355
3.  2 KB 14