2010 June - Note 6

Supreme Court illustrates ‘res ipsa loquitor’ with foreign cases (V. Krishan Rao v/s Nikhil Super Speciality Hospital & Anr.)

In the case of V. Krishan Rao v/s Nikhil Super Speciality Hospital & Anr. (paragraph 46, page j188) the Supreme Court has given  a few instances where the legal doctrine of ‘res ipsa loquitur’ is applicable in case of medical negligence. Usually these cases are the ones where negligence is patently clear.

The Latin phrase ‘res ipsa loquitor’ means the ‘thing speaks for itself’. In cases of medical negligence it means that the results of the medical act point out to negligence and contrary to the ordinary rules of proving a case, the court presumes negligence in these cases. The patient does not carry the burden of proving negligence in court. On the contrary the burden shifts on the doctor/hospital to positively prove that they were not negligent.

The Supreme Court has pointed to instances of this doctrine by citing the following foreign cases:

“Where a patient sustained a burn from a high frequency electrical current used for “electric coagulation” of the blood [See Clarke v. Warboys, The Times, March 18, 1952,CA];

Where gangrene developed in the claimant’s arm following an intramuscular injection [See Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42];

When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady v. Tenderenda (1974) 51 D.L.R. (3d) 79, SCC];

Where the defendant failed to diagnose a known complication of surgery on the patient’s hand for Paget’s disease[See Rietz v. Bruser (No.2)(1979) 1 W.W.R. 31, Man QB.];

Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin [See Bull v. Devon Area Health Authority (1989), (1993) 4 Med. L.R.117 at 131.];

Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by hypoxia for a period of four to five minutes [See Coyne v. Wigan Health Authority {1991) 2 Med. L.R. 301,QBD];

Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [See Lindsey v. Mid-Western Health Board (1993) 2 I.R. 147 at 181];

When a needle broke in the patient’s buttock while he was being given an injection [See Brazier v. Ministry of Defense (1965) 1 Ll. Law Rep. 26 at 30];

Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [See Roe v. Minister of Health (1954)2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority (1982) 1All E.R. 650];

Where an infection following surgery in a “well-staffed and modern hospital” remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682];and

Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crest v. Sylvester (1956)1 D.L.R. (2d) 502].”

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