Negligence: Res Ipsa Loquitur<\/p>\n
Negligence with res ipsa loquitur theory<\/p>\n
Holly Workman <\/p>\n
National Juris College <\/p>\n
Course Name: Torts 505-2107<\/p>\n
Instructors Name: Eric Baime <\/p>\n
Facts:<\/p>\n
On July 12, 2019, Greg, underwent a rotator cuff surgery after the advisement of the doctor and completion of an MRI. The procedure was performed by Doctor X. During that procedure, a metal screw (a type used in medical instruments) was left inside Greg\u2019s body. <\/p>\n
Shortly after the 2019 rotator cuff surgery, Greg went to the airport and went through the metal detectors and kept setting off the metal detector alarm. At that time, he was frisked by the TSA and found that he had nothing on him but kept setting off the alarm. Greg went through the TSA\u2019s new high tech x-ray device, and it was discovered to have some random metal object lodged underneath his right shoulder blade. <\/p>\n
After returning from his trip, Greg immediately went to the doctor and had another X-ray confirming that he had a metal screw lodged in his muscle behind his right shoulder blade and that he would have to undergo another surgery to have it removed. The screw was removed and after four (4) months of therapy, Greg has recovered. It was determined that the screw is a type used in medical instruments, including those that are used in repairing one\u2019s rotator cuff. <\/p>\n
The plaintiff, Greg, is alleging that the defendant negligently provided medical are by failing to explore, inspect, and otherwise confirm that all foreign objects were removed from Greg\u2019s body before his surgical incision was closed. <\/p>\n
ISSUE:<\/p>\n
Is the doctor negligent under the theory of res ipsa loquitur for leaving a metal screw inside the patient, Greg, after completing his surgery?<\/p>\n
Rule:<\/p>\n
Fessenden v. Robert Packer Hospital, 97 A. 3d 1225 (Pa. Super. Ct. 2014)<\/p>\n
Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A. 2d 1134 (1981)<\/p>\n
Robinson v. Wirts, 387 Pa. 291, 127 A. 2d 706, 710 (1956)<\/p>\n
Malpractice, Black\u2019s Law Dictionary (11th ed. 2019)<\/p>\n
Sagala V. Tavares, 367 Pa. Super. 573 (1987)<\/p>\n
Guilbeau v. St. Paul Fire and Marine Ins. Co., 325 So. 2d 395, 398 (La. Ct. App. 1975) <\/p>\n
Nazar v. Branham, 291 S.W. 3d 599, 604-605 (Ky. 2009)<\/p>\n
Application:<\/p>\n
According to Black\u2019s Law Dictionary, malpractice is the area of law that governs civil liability claims for harms caused by medical professionals while discharging their professional responsibilities, meaning a doctor or another health care professional is alleged to have failed to exercise ordinary care during medical treatment, resulting in injury to a patient. The four (4) negligence elements that must be met are: duty (duty of care that is a legal responsibility between parties), breach (breach of duty- the defendant must have behaved unreasonably), causation (the breach of duty must have caused harm to the plaintiff), and damages (the plaintiff must suffer harm). Meaning to prove one must show the following: 1. The incident was a kind that doesn\u2019t generally happen without negligence 2. It was caused by an instrumentality solely within the defendant\u2019s control 3. The plaintiff didn\u2019t contribute to the cause. <\/p>\n
The defendant has a duty to act using ordinary care to the plaintiff after a doctor-patient relationship has been established. The doctor-patient relationship is formed when the patient seeks medical treatment, and the doctor agrees to provide the treatment. Doctors only have a duty to care to those they agree to treat. Doctors have ongoing obligations to their patients if the underlying condition requires medical attention. It is clear that the plaintiff and defendant have a doctor-patient relationship established. <\/p>\n
Byrd v. WCW, 868 S.W 2d 767 (Texas 1994), \u201cthe basic test for whether the doctor has breached the duty of care is the reasonable person standard. A person is considered negligent if he fails to act with the care a reasonable person would use in a similar situation.\u201d As such, duty of care requires that physicians exercise the degree of skill and care that would be expected of an average practioner in the doctor\u2019s field of medicine. Failing to evolve to those expectations may be a breach of duty and thus negligence. <\/p>\n
As with all negligence-based civil actions, the burden during a medical malpractice case is on the plaintiff to demonstrate that the defendant\u2019s conduct meets the elements of a negligence claim. Since evidence as to professional standards are usually known primarily to practitioners or others intimately familiar with common medical practice, proving a breach of duty generally requires the testimony of expert witnesses. In Sagala v. Tavares, it states \u201cIn determining whether a physician breached his duty to his patient, the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision to whether or not to undergo treatment.\u201d <\/p>\n
In Robinson v. Wirt, states that \u201cno expert testimony is vital in \u201ccase where\u2026. a gauze pad is left in the body of a patient following an operation.\u201d In Jones v. Harrisburg Polyclinic Hospital says, \u201cExpert medical testimony only becomes necessary in such a case, to indicate that the injury would not have occurred absent negligence, where there is no fund of common knowledge from which laypersons can reasonably draw the interference or conclusion of negligence.\u201d The courts extension of the doctrine of res ipsa loquitur to medical malpractice cases was grounded upon desire to allow injuries to infer negligence in situations \u201cwhere a patient submits himself to the care and custody of doctors and nurses, is rendered unconscious and receives some injury from instrumentalities used or procedures employed in his treatment.\u201d Jones. In the case of Guilbeau v. St. Paul Fire and Marine Ins. Co. is another case where the doctor left a medical instrument inside a body following a surgery and was found negligent. In Nazar v. Branham, \u201cres ipsa loquitur applies to damages which do not normally occur in the absence of negligence and are caused by an agent or instrumentality entirely under the care of the defendant.\u201d In Fessenden, held \u201cthat leaving a sponge in a patient does not require expert testimony to prove negligence. The act speaks for itself in establishing negligence and a breach of duty by the medical professional.\u201d<\/p>\n
Also, in Fessenden it has been established that \u201claparotomy sponges aren\u2019t usually left in patient\u2019s abdomen after surgery absent negligence, which there\u2019s no explanation for the retained sponge other than the defendant\u2019s negligence. \u201cThis is the same situation in the plaintiff\u2019s case, where the plaintiff was unconscious and was under the care and custody of the defendant and was later discovered screws from the medical instrument used in the rotator cuff surgery was left inside the plaintiff and caused injury to him that required another surgery for the removal of the screws. <\/p>\n
Conclusion:<\/p>\n
For the reasons mentioned above, this case warrants the application of res ipsa loquitur. Because it is for the jury in cases where different conclusions could also be reached to work out whether to infer negligence and causation based upon the circumstances surrounding an injury.<\/p>\n","protected":false},"excerpt":{"rendered":"
Negligence: Res Ipsa Loquitur Negligence with res ipsa loquitur theory Holly Workman National Juris College Course Name: Torts 505-2107 Instructors Name: Eric Baime Facts: On July 12, 2019, Greg, underwent a rotator cuff surgery after the advisement of the doctor and completion of an MRI. The procedure was performed by Doctor X. During that procedure, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[10],"class_list":["post-78470","post","type-post","status-publish","format-standard","hentry","category-research-paper-writing","tag-writing"],"_links":{"self":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/78470","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/comments?post=78470"}],"version-history":[{"count":0,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/78470\/revisions"}],"wp:attachment":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/media?parent=78470"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/categories?post=78470"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/tags?post=78470"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}