In order to file a medical malpractice case in the state of New York, you are required to bring in a medical expert to support your claim. The claim should show that there was wrongdoing, the injuries were caused by the wrongdoing, and the injuries are significant and/or permanent. However, in certain instances expert testimony is not required.
Res Ipsa Loquitor
For instance, you go in for a surgery to fix a problem in your left hand, and when you come out of surgery you notice a bandage on your right shoulder, and the nurse says you have suffered a third degree burn. In such an instance, can you use Res Ipsa Loquitor, which is a Latin phrase meaning, the thing speaks for itself? If so, do you need a medical expert to support your claim? The answer is that in such a case, you can use Res Ipsa Loquitor and you do not need a medical expert to support your claim.
Three Elements Needed to Apply Res Ipsa Loquitor
However, before concluding that a medical expert is not needed to testify, you need to consider three important things. Hence Res Ipsa Loquitor will apply only when:
1. This type of injury would not happen but for someone’s negligence
2. The patient has not caused or contributed to his or her own injury
3. The patient was in total and exclusive control of the hospital staff or doctor
Only when all these three conditions are met, then only you can use Res Ipsa Loquitor as part of the claim, and there is no need to bring in a medical expert to testify.
Let us consider your case. You were under anesthesia, when you received the burn on your right shoulder. Hence, you could not have possibly caused or contribute towards the injury. Additionally, since you were under anesthesia you were under the exclusive control of the hospital staff and the doctor in the operating room. However, could your injury be caused only because of someone’s negligence? In this case, it turns out this is not so.
During the surgery, a quartering instrument is used for burning close, bleeding blood vessels. When the hospital was using this instrument, they inadvertently touched a covering that was shrouding the patient, and this caught fire. The fire was not seen until it was too late and the patient was burnt on the right shoulder. Hence, clearly negligence of the hospital staff caused the burn and there was no other way this injury could have been caused. Therefore, you do not need a medical expert to testify, to prove this case.
However, even when the three elements are met and you can use Res Ipsa Loquitor, it is best to provide expert testimony. The expert will be able to explain the surgery to the jury, and why such an injury never should have occurred. By bringing in the expert, you gain tremendous credibility with the jury. Hence, even if you are not required to have a medical expert on your side, it makes sense to present an expert testimony on your case’s behalf.