News
06:53 PM Saturday September 04, 2010
Res Ipsa Loquitur case
There has been a good practical example of the effective application of the Res Ipsa Loquitur rule in which the burden of proof shifts to a Defendant to establish that he was not negligent is to be found in the Scottish case of Greenhorn v South Glasgow University Hospitals NHS Trust [2008] L.S. Law Med. Web. This was decided largely on the basis of recent English law.
The pursuer (Claimant) was injured by arterial bleeding during the course of a colposuspension operation. In an extremely long judgment, the Trial Judge attempted to analyse how and why that bleeding occurred and whether it was as a result of a culpable lack of care on the part of the surgeon. At paras 131 and 138, the judge expressed the particular findings and conclusion that are of relevance:
"I am satisfied on the evidence which I have heard that arterial bleeding is not an accepted or recognised risk of colposuspension. No evidence was produced from the medical literature to show that it is a recognised risk. If it were a recognised risk then I have no doubt that, because of the serious and potentially fatal consequences which could flow from its occurrence, it would have been not only mentioned but also emphasised in the medical literature dealing with the subject. Mr Jarvis, although unable to cite any reference in the medical literature to the risk of arterial damage in the course of colposuspension, mentioned his personal experience of one colposuspension in which he damaged an obturator artery. It seems to me that this evidence shows that arterial damage is indeed exceptional case because it was the only case of arterial damage which Mr Jarvis was able to cite from his long career, and, moreover, he was able to explain how it came about in the absence of negligence."
"Following upon my finding that arterial damage is not a recognised complication of colposuspension and in light of the authorities referred to above [Ratcliffe v Plymouth 6- Torbay Health Authority [1998] Lloyd's Rep Med 162, Bovenzi v Kettering Health Authority [1991] 2 Med LR 293 and Hendy v Milton Keynes Health Authority (No 2) [1992] 3 Med LR 119], as well as Cassidy v Ministry of Health [1951] 2 KB 343, I am of the opinion that, once arterial damage has been proved by the pursuer, that raises a prima facie inference of negligence on the part of the defenders which it is for them to rebut by acceptable evidence. There has been no such evidence in this case. It is sufficient for the pursuer to show that she suffered arterial damage without proving precisely how that occurred: it is then for the defenders to prove that it occurred without negligence on their part. In Cassidy Denning L.J. (as he then was) said that a plaintiff is entitled to say: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it, if you can." Similarly, in my opinion the pursuer in this case is entitled to say: "I went into hospital to undergo the routine operation of colposuspension. I have come out with a neurological injury which was caused when a branch of my internal iliac artery was damaged during the operation. That should not have happened if due care had been used. Explain it, if you can." In my judgment the defenders have failed to explain how the pursuer sustained her injury without negligence on the part of the operating surgeon."
This is an interesting case and demonstrates that the Res ipsa Loquitur is alive and well when the right circumstances arise.
As a simple rule of thumb if a medical complication arises that is not an accepted or recognised risk of the procedure it is reasonable to infer negligence on the Defendant’s part and for the Claimant to bring a claim. Then unless the Defendant adduces cogent and persuasive evidence that amounts to a plausible explanation as to why the complication arose such a claim has a reasonable prospect of succeeding.
12 July 2010
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