What Happens When a Doctor Leaves a Tool Inside of You: Memphis Medical Malpractice Attorney Explains the Doctrine of Res Ipsa Loquitur
Surgery itself is daunting. It is nerve-racking and downright stressful. Particularly when the surgery is a significant one which will require you to undergo anesthesia and it will take health care providers a considerable amount of time to perform. We trust our health care providers to competently perform the procedure to heal us or, if that is not possible, to at least do us no further harm than when we walked into the door.
Yet, sometimes doctors, nurses, and other hospital health care workers make errors too. Sometimes these errors are routine risks that may occur in the course of a complicated surgery. But other times these errors can be caused by reckless, carelessness, and downright negligence of a health care provider.
One of the biggest fears of a surgery is that the doctor leaves something inside of you that is not supposed to be there. This is called a “foreign object,” and can include surgical tools, instruments, pads, wires, or other similar objects. While this is generally negligent conduct of the doctor, there are other theories to prove liability.
One such theory prescribed exactly for situations like this is called res ipsa loquitur. This means “the thing speaks for itself,” and is used when the act that occurred could not have occurred unless someone was negligent. Under Tennessee law, Section 29-26-115(c) provides in a health care liability action, “that there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.”
Essentially, this means that your experienced Tennessee medical malpractice attorney will have to prove two things. First, the defendant was in exclusive control of the instrumentality of the injury. Meaning the defendant health care providers were the only ones in charge of the scalpel or the pads, or more generally, were in charge of the entire operation. Second, the injury or accident must have occurred which would not ordinarily occur in the absence of negligence. Meaning if the doctor correctly performed this surgery, none of the potential risks of the surgery would have occurred causing the injury.
Tennessee courts have permitted this doctrine to be used to aid the plaintiff when there is no direct evidence of the defendant’s negligence, including in a medical malpractice case. Courts have continued to hold this doctrine as valid in cases where the plaintiff was anesthetized or unable to give an account, to testify to the acts, and unable to contribute to his or her injury.
Here at Bailey and Greer, PLLC our Tennessee medical malpractice attorneys understand how to effectively pursue your claims. Our legal team has a proven track record of compassionately representing our clients injured in Tennessee personal injury cases which is included in our testimonials page and our successful case results. Please contact us today to receive your free case evaluation by dialing 901-680-9777.
Since graduating magna cum laude in 2005 from the University of Memphis School of Law, Thomas has helped make a difference in the lives of victims of serious personal injury, wrongful death, and professional negligence. Thomas has extensive trial experience in both state and federal court. Among other victories in the courtroom, Thomas obtained several impressive jury verdicts and settlements
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