Tuesday 11 April 2017

Res ipsa loquitur: The thing speaks for itself

Res ipsa loquitur: The thing speaks for itself In the common law of torts, res ipsa loquitur (Latin for "the thing speaks for itself") is a doctrine that infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. Ordinarily the accident must satisfy the necessary elements of negligence: duty, breach of duty, causation, and injury. In res ipsa loquitur, the elements of duty of care, breach and causation are inferred from an injury that does not ordinarily occur without negligence. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. 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 a case, it is for the respondent to prove that he has taken care and done his duty to repeal the charge of negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Dr KK Aggarwal National President IMA & HCFI

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