You may have heard the Latin phrase res ipsa loquitur; it translates to “the thing speaks for itself.” Legally, res ipsa loquitur states a rule of law where a jury must presume a defendant was negligent when a certain type of injury occurs. The burden then shifts to the defendant to prove the injury occurred in the absence of negligence. The res ipsa rule originated in 1863 when a plaintiff was struck by a barrel of flour falling from a second-story window. The barrel caused the judge hearing the case to remark, “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. … [I]f there are any facts inconsistent with negligence, it is for the defendant to prove them.” Thus, res ipsa is grounded in the notion everyone knows barrels aren’t supposed to fall from second-floor windows.
Traditionally, res ipsa applied only in a small class of medical malpractice cases, such as retained objects following surgery. In such cases, jurors are just as capable as medical professionals in understanding someone was negligent. For example, it does not take expert testimony to establish there has been negligence when a surgical instrument is left in a patient. There’s simply no compelling medical reason for a surgeon to leave an instrument in a patient’s abdomen.
In contrast, res ipsa generally has not applied in cases involving pulmonary embolus because the process of thromboembolic disease is beyond the average juror’s understanding and death by pulmonary embolus would not give rise to a presumption of negligence.
Where res ipsa applies, it’s a powerful concept. If res ipsa were found to apply to pulmonary embolus cases, the jury would be instructed it is the duty of a physician caring for a post-surgical patient to take care that the patient does not develop pulmonary embolus. Thus, a jury would begin with the presumption a patient would not develop pulmonary embolus absent negligence. The physician would then be left with the burden to prove otherwise. Given such a charge, it is foreseeable a jury could return a verdict against a physician, even if the physician managed the patient’s care appropriately and ordered appropriate prophylaxis.
Take Extra Precaution
To prevent CMS’ reimbursement decisions from becoming the functional equivalent of a res ipsa instruction, physicians need to raise the level of precaution they employ against “never event” complications. At the heart of CMS’ decision is its statement “never event” complications are “reasonably preventable by following evidence-based guidelines.” When a condition is only “reasonably preventable,” instead of “absolutely preventable,” a defense lawyer retains the ability to argue some patients will develop the condition even when the care was entirely appropriate.
We believe most jurors understand the inherent difficulties of caring for sick patients, and the risks that exist every time a patient undergoes a surgical procedure. The defense lawyer’s challenge is convincing a jury the patient received appropriate care, notwithstanding the complication.
Because CMS refers to “evidence-based guidelines,” physicians must know and follow the guidelines. The first step is becoming familiar with the complications CMS will deny reimbursement, and then regularly review the available guidelines to identify practices to reduce or eliminate the complication. Re-evaluate and update your practice whenever new information becomes available.
A consistent cycle of evaluating and responding to complications will afford the defense lawyer the ability to argue the physician and hospital complied with “evidence-based guidelines” and the patient’s case represents one of the unfortunate incidents where a patient suffers a complication despite receiving the highest-level of care.