Does the thing ever speak for itself in medical claims?
Two cases in the last year have again explored the concept of res ipsa loquitur, the Latin maxim literally meaning “the thing speaks for itself”, and its applicability in medical negligence cases.
The maxim first appears to have arisen in reported cases in Byrne v Boadle (1863) 9 LT 450, a case in which a barrel of flour from a warehouse hit the plaintiff as he was walking by. Its classic exposition was 4 years later in Scott v London and St. Katherine’s Docks (1865) 3 H. & C. 896, this time when a bag of sugar fell from a hoist on to the plaintiff below, and in which Erle CJ set out his explanation of the principle as follows (at p. 601):
“where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care”.
This concept subsequently was considered in medical negligence cases, the first of which was Cassidy v Ministry of Health [1951] 2 K.B. 343, in which a patient who went into hospital to be treated for two stiff fingers and who was discharged with a hand with useless function was entitled to an explanation by the hospital of how that could have happened absent any negligence. In that case, the inference of negligence was not successfully rebutted by the defendant (as per Denning LJ). A number of subsequent first instance medical cases and three Court of Appeal ones (Bull v Devon Area Health Authority (CA 2 February 1989; (1993) 4 Med LR 117); Delaney v Southmead Health Authority (CA 6 June 1992; (1995) 6 Med LR 355); and Fallows v Randle (CA 7 May 1996; (1997) 8 Med LR 160)) led up to the seminal case of Ratcliffe v Plymouth and Torbay Health Authority [1998] Lloyd’s L.R. Med. 162.
In this latter case, Hobhouse LJ set out a detailed analysis of the concept’s applicability and rather called into question its relevance in medical cases by observing at p. 177:
“Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted.”
More recently, the issue was again considered in Hussain v King Edward VII Hospital [2012] EWHC 3441 (QB), in which Eady J provided a helpful summary:
“11. There is no mystique about the doctrine of res ipsa loquitur. It does not represent a principle of law: nor can it be invoked as giving rise to a presumption of any kind. It is simply a conventional way of saying that the facts, as known to the claimant at the time he pleads his case, give rise in themselves to a prima facie case of negligence. This may or may not be upheld at trial, but at the pleading stage it has the effect of compelling the defendant to respond. Once the defendant has done so, the question will be whether the court has been satisfied in the light of all the evidence at trial that negligence and causation have been proved. Each case will depend upon its own facts. In the course of reaching a conclusion, the judge may or may not be prepared to draw the inference originally invited by the claimant. This was fully explained by the Court of Appeal in Ratcliffe v Plymouth & Torbay HA [1998] Lloyd’s Rep Med 162, 172-3 (Brooke LJ) and 174-7 (Hobhouse LJ).
12. Doubts have been expressed from time to time as to the utility of this doctrine in medical negligence cases, for example by Stuart-Smith LJ in Delaney v Southmead Hospital Authority [1995] 6 Med LR 355, at 359. He went on to point out that it would always be open to a defendant to put forward a possible explanation for what had occurred that was inconsistent with negligence. It would not be necessary to demonstrate such a causal explanation on the balance of probability – provided always that it was plausible. Furthermore, a defendant could seek to show that all reasonable care had been taken. This Defendant has sought to pursue both these lines of argument. One should never lose sight, however, of the simple fact that the burden of proof remains on the Claimant throughout: see e.g. Ratcliffe, cited above, at p.174. That is why a defendant is only required to show a plausible alternative explanation in order to rebut a prima facie case.”
He then helpfully went on to comment on the practical applicability of the maxim in medical cases:
“13. In practice, when it comes to medical negligence cases, a claimant is more often than not going to need to buttress his case by expert evidence to the effect that the circumstances relied upon as giving rise to a prima facie case would not ordinarily come about in the absence of negligence.”
In Hussain, Eady J held on the facts that the defendant had raised a plausible explanation such as to rebut any prima facie case of negligence; the maxim, therefore, did not apply; and the claimant failed.
In a subsequent even more recent case, this time in the Court of Appeal, Thomas v Curley [2013] EWCA Civ 117, the doctrine was again considered. In this case, during an uncomplicated laparoscopic cholecystectomy, damage to the claimant’s common bile duct had occurred. The particulars of negligence had asserted simply that the injury was sustained as a consequence of the defendant’s negligence in negligently causing injury to the claimant’s common bile duct. Additionally, in response to a Part 18 request, it was stated that: “The claimant will aver that the most likely explanation was that it was a diathermy injury; alternatively it was a traction injury. The Claimant will aver that whatever the mechanism, the injury was caused by the negligence of the first defendant. The Claimant will aver that iatrogenic bile duct injury is, in itself, evidence of negligence.”
As a matter of fact, the damage to the common bile duct had occurred away from the actual operation site of the cystic duct stump. The judge, Griffiths Williams J, concluded that the damage, which had probably been caused iatrogenically by the defendant surgeon, required a plausible explanation. However, neither the defendant’s expert nor anyone else could provide one. The defendant’s expert’s explanation would have been that the two clips on the short cystic duct stump had fallen off due to mechanical failure and had eroded through the cystic duct remnant as a result of ischaemic necrosis. However, this explanation could only be applicable if the injury had in fact been at the site of the operation, which it was not, so the likely explanation had to be one of want of care. The judge, therefore, determined that the claimant had proved her case on consideration of all of the evidence and found the surgeon negligent.
The surgeon appealed, primarily on the ground that the judge had erred in determining breach of duty on the basis only of the principle of res ipsa loquitur, i.e. the mere fact of damage to the common bile duct being evidence of negligence, when it was apparent that the claimant’s case failed to meet the requirements of the principle.
In giving the judgment of the Court of Appeal, Lloyd Jones LJ summarised the principle as describing:
“a situation in which it is possible for the court to draw an inference of negligence where a claimant has proved a result without proving any specific act or omission on the part of the defendant which has produced the result. If it is proved on the balance of probabilities that the result could not have happened without negligence and that the situation was under the control of the defendant, then it is open to the court to conclude that it is more likely than not that the result was caused by negligence. However, it is not appropriate to draw such an inference where there is evidence as to why or how the result occurred (Scott v London and St. Katherine’s Docks (1865) 3 H. & C. 896).”
Lloyd Jones LJ then dismissed the defendant’s appeal, concluding at para 33:
“The [claimant] had established that in this case, during an uncomplicated operation, injury was caused in an area other than that where the operation took place. That called for an explanation as to how that might have occurred in the absence of negligence. None was forthcoming from the defendant’s expert or from any other quarter. That is entirely consistent with the judge’s direction to himself that he should assess the weight of the evidence and decide whether negligence on the part of the appellant had been proved. This has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur”.
However, the appeal court did acknowledge that it might be considered that there had been an application of the maxim in this case because the claimant’s expert appeared to be drawing a necessary inference of negligence from the mere fact of injury to the common bile duct. The court’s reasoning, though, for concluding it was not a res ipsa case was because the inference of negligence had not arisen from the mere fact of injury to the common bile duct during a cholecystectomy operation but, rather, from both the specific facts of this case and the defendant’s expert’s inability to explain how such damage could have been caused non-negligently.
Notwithstanding that the court expressly declined to draw any inference of negligence, it would appear that Thomas was a case in which res ipsa was in fact applicable, albeit perhaps in a more precise form than originally anticipated or which the court described: the claimant had succeeded in establishing that the fact of the injury (to the common bile duct) being at a particular location (away from the site of the operation) in an otherwise uncomplicated cholecystectomy was enough evidence to infer want of care by the surgeon in the absence of any plausible alternative explanation or evidence that there was no negligence by the surgeon; and the defendant had failed to demonstrate either.
On this basis, it may seem not unreasonable to consider that a claimant in the future with a similar injury in similar circumstances, however rare such a claimant might be, would nevertheless still be able to assert the maxim to force a defendant to explain plausibly the adverse outcome or run the risk of the court inferring negligence.
The case law has consistently sought to ensure that res ipsa loquitur means little more than that the fact of a particular result, in itself, may be enough evidence to enable the court, should it so wish, to infer negligence sufficient to impose liability in the absence of the defendant rebutting any such inference. The maxim is, therefore, best considered to be a rule of evidence rather than some principle of law. In practice, it usually takes its shape in the form of a submission by the claimant that the facts establish a prima facie case of negligence against the defendant, with the onus then being on the defendant to rebut such an inference by demonstrating that there is an alternative plausible explanation and/or that reasonable care was taken, with a failure to do so potentially resulting in the court inferring negligence.
It is apparent from Hussain and Thomas that the courts will be slow to ascribe their determination of a medical case to an inference of negligence, even when there might be the opportunity to do so, and claimants would, therefore, do well to be wary of too much reliance upon it. However, notwithstanding the courts’ desire to minimise its importance, the maxim does still remain a potentially useful weapon in a claimant’s armoury worth utilising in the right circumstances.
Dr Jock Mackenzie is a Partner in Anthony Gold’s personal injury department. For further information email Jock or call 020 7940 4060.
This article was first published by PI Brief Update Law Journal on 14 October 2013, and is reproduced by kind permission.