Law is chock-full of fancy, specialized sayings called "terms of art." Many of these terms are in Latin, which makes understanding the law much more difficult. Res Ipsa Loquitur is one of the easy ones. The injury speaks for itself - in other words, it's obvious. When you're injured and you have physical evidence, medical records and witnesses, it's obvious.
But your case is not all about whether or not you're injured; it's about who did it, how did it happen, and why. This is where Res Ipsa Loquitur comes in: it's an opinion about who did it. The other side can fight this opinion or educated guess that the Court makes about your injury. The Court's presumption is that the defendant (your doctor, anesthesiologist, or other medical professional) caused your injury by being negligent; the Court believes that, in normal circumstances and while taking normal care, the error or accident or injury to you would not have happened if this defendant did a good job. That's medical malpractice.
There's a terrible but memorable example of this idea: a man goes into a hospital to have his right leg removed. He is wheeled into the operating room, has anesthesia, and wakes up with one leg.
Why? Negligence, the #1 reason for medical malpractice. It comes in two flavors: not taking actions that would stop an injury from occurring (omission), and taking deliberate actions that cause injury or harm (willfulness, wantonness or recklessness). Acts of omission include giving the wrong type of blood during surgery, leaving surgical sponges inside a patient, or ignoring a patient with heat stroke who asks for water. Examples of recklessness include arranging a surgical patient's body in such a way that he has permanent spinal damage, or giving the wrong medications to a patient, causing organ damage or even death.
Res Ipsa Loquitur helps plaintiffs. Injured patients who benefit most from the Court's assumption that the defendant was negligent in any way are patients who are harmed while unconscious or not in control. Think about surgery: a patient goes to someone who is supposed to be an expert, is taken into an operating room full of more experts, and is made semiconscious or unconscious while lying flat. It's impossible that such a patient could cause an accident or injury. The Court understands and sympathizes.
Whether your injury has resulted from surgery or some other medical error, be sure to talk with your attorney about the nature of your case. Be an active participant, not only in your recovery, but in your legal fate. Ask whether Res Ipsa Loquitur applies. Any lawyer would be shocked to hear a client say those three words!
Please note: this article is not intended as legal advice. Please consult an Indiana medical malpractice attorney before making any major decisions regarding a malpractice law suit.