Accidents will happen
…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.
Ignorance is bliss
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.
A fool and his money are soon parted
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.
Virtue is its own reward
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;
- By providing a plausible (and non negligent) explanation of what may have happened. Care needs to be taken that the explanation is not too theoretical or remote but the Defendant does not have to prove that the explanation is more likely to be correct than any other. Often expert evidence will be needed to support this contention.
- An alternative defence is to show that it is more likely than not that the clinicians did exercise proper care of the Claimant. This defence will be supported by factual evidence from the clinicians concerned and supported by expert evidence if appropriate.
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.
Prevention is better than cure
To avoid, and if necessary defend, claims of res ipsa it is important to show evidence of reasonable care by:
- Ensuring that all clinical records are fully and appropriately completed with clearly annotated times and dates and signatures.
- Use pro forma checklists, or ad hoc lists within the records, as evidence to show that approved practices and protocols have been followed. Checklists should be annotated where appropriate, and particularly so if an unusual step or decision has been taken. If necessary add a dated and timed retrospective note in the records to explain what happened but do not amend records written earlier.
- If the Claimant is to succeed in his claim he needs to show that he was not responsible for his injury and that the Defendant had control over the relevant situation and that responsibility lies solely with the Defendant (Mahon v Osborne (3)) So, it should be recorded in the notes if the patient demonstrates concerning or unusual behaviour such as
- repeatedly leaving the ward against advice, perhaps to smoke cigarettes, or
- openly disregards instructions whilst in hospital or as an out-patient in terms of life style as well as failure to adhere to prescribed treatment, or
- has treatment elsewhere
Pearls of wisdom
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