This month we are looking at Latin legal phrases that sound complicated but actually represent simple concepts.
One of our favorites is res ipsa loquitur which means "the thing (or matter) speaks for itself."
Pronounced RACE IP-sa LOCK-wit- tour, the doctrine is used to prove negligence with circumstantial evidence in tort (injury) cases. It allows a judge or jury to deduce negligence from the mere fact that an accident occurred when there is no other reasonable explanation.
To make use of res ipsa loquitur, the plaintiff must establish three things:
- The accident or injury would not ordinarily have occurred without negligence,
- The thing or incident that caused the injury was under the defendant's exclusive control, and
- The harm was not primarily due to anything the plaintiff did.
In addition, Nevada, unlike some other states, requires that the defendant have superior knowledge of the accident or be in a better position to explain it.^
If all these conditions are met, the burden then shifts to the defendant to prove that he or she was not responsible for the injury. If the defendant cannot do this, the plaintiff wins.
While the concept of res ipsa loquitur is simple, in practice the application can be tricky. For instance, sometimes it is clear that someone was negligent but the plaintiff cannot prove who it was.
Courts have generally held that plaintiffs in this situation can still make use of res ipsa loquitur. All members of a surgical team share control for a patient's well-being.
They are also in a better position than an unconscious patient to explain what went wrong. Therefore, the burden is on them to explain it. This prevents the situation in which members of a group avoid liability by staying silent.
But remember -- the doctrine of res ipsa loquitur simply shifts the burden of proof to the defendant. Innocent defendants can still avoid liability by:
- Identifying the wrongdoer, or
- Showing that they did not have control of anything that could have harmed the patient.
For instance, a nurse might be able to testify that orderlies dropped the patient while transferring the patient to the operating table. Or the nurse might be able to show that it was the nurse's responsibility to watch the surgeon and not the patient.
Medical malpractice cases are the most common in which plaintiffs plead res ipsa loquitur in Nevada. But the doctrine can be used in any type of injury case including (but not limited to) product liability, product maintenance and premises liability.
If you have questions and would like more information, we invite you to call our Nevada personal injury lawyers at 702-DEFENSE (702-333-3673).