Legal Eagle Eye Newsletter for the Nursing Profession(5)12 Dec 97  PDF Version

      Quick Summary: Courts often give surgical patients the benefit of the res ipsa loquitur rule because a patient in the operating room is unconscious and unaware of what is going on, and only medical personnel who are potential medical malpractice defendants are with the patient.  Res ipsa loquitur translates as "The thing speaks for itself."

   The rule means that a surgical patient does not have to come up with direct evidence of negligence in the operating room to succeed with a medical malpractice case, if three conditions are met:

1. The injury is one which does not ordinarily occur in the absence of negligence;

2. The injury was caused by an instrumentality over which the defendant healthcare providers had exclusive control; and

3. The injury was not due to any voluntary act of the patient.

   The telling fact which swayed the Court of Appeals of Indiana not to apply res ipsa loquitur in favor of the patient, but to rule in favor of the hospital, was a med/surg staff nurse’s chart note of her nursing physical assessment of the patient.

   The nurse noted a burn on the patient’s thigh as one of the multiple traumas from the industrial mishap which brought the patient to the hospital in the first place, among other things, for the orthopedic ankle surgery in which he allegedly sustained a burn from the bovie pad.

   The patient’s attorneys were unable, or did not think it necessary, to produce expert medical testimony that the patient’s thigh burn was the type consistent with an electrical burn from a bovie pad. The patient’s case rested entirely on the patient’s testimony that he noticed the burn a day or two after surgery. This was not sufficient for the court to invoke the rule of res ipsa loquitur for the patient’s benefit, and he lost his case. Slease vs. Hughbanks, 684 N.E. 2d 496 (Ind. App., 1997).