Dr KK Aggarwal

Res ipsa loquitur translates as ‘the thing speaks for itself.’ In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such cases, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

Following are illustrations where the principle of res ipsa loquitur has been made applicable in the case of medical negligence:

1. Where a patient sustained a burn from a high frequency electrical current used for electric coagulation of the blood [Clarke v. Warboys, The Times, March 18, 1952, CA]
2. Where gangrene developed in the claimant’s arm following an intramuscular injection [Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42]
3. When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [Eady v. Tenderenda (1974) 51 D.L.R. (3d) 79, SCC]
4. Where the defendant failed to diagnose a known complication of surgery on the patient’s hand for Paget’s disease [Rietz v. Bruser (No. 2) (1979) 1 W.W.R. 31, Man QB]
5. Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin [Bull v. Devon Area Health Authority (1989), (1993) 4 Med. L.R. 117 at 131.]
6. Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by hypoxia for a period of 4-5 minutes [Coyne v. Wigan Health Authority (1991) 2 Med. L.R. 301, QBD]
7. Where, following a routine appendicectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [Lindsey v. Mid-Western Health Board (1993) 2 I.R. 147 at 181]
8. When a needle broke in the patient’s buttock while he was being given an injection [Brazier v. Ministry of Defence (1965) 1 Ll. Law Rep. 26 at 30]
9. Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [Roe v. Minister of Health (1954) 2 Q.B. 66. Brown v. Merton, Sutton and Wandsworth Area Health Authority (1982) 1 All E.R. 650]
10. Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury [Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682]
11. Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester (1956) 1 D.L.R. (2d) 502]
12. In PGI Chandigarh v. Jaspal Singh and others, (2009) 7 SCC 330, the Court held that mismatch in transfusion of blood resulting in death of the patient, after 40 days, was a case of medical negligence.

Reference

1.  SCI: V. Kishan Rao vs Nikhil Super Speciality Hospital, 8 March, 2010, Author: Ganguly, Bench: G.S. Singhvi, Asok Kumar Ganguly: Civil Appeal No. 2641 of 2010 (Arising out of SLP(C) No. 15084/2009