> from: Dunn Matthew
> subject: Re: Isn't that where "Trick & Treat" started?
> In the US, the legal situation is rather different: EDs have a legal
> responsibility (under the Emergency Medical Treatment and Active Labor Act)
> to carry out Medical Screening Examinations on patients in the department
> even if accepted by other specialities- exact extent of MSE not defined, but
> in a case like this, res ipse loquitur argument would suggest that the MSE
> was inadequate unless there was good documentation (and the 'check
> physiological parameters, call consultant for abnormal physiology' seems
> reasonable here).
Oh not at all, Matt. Although a technical point, but hugely important, the legal principle of "res ipsa loquitur" rarely, if ever, applies to medical negligence cases. Res ipsa loquitur (literally, the thing speaks for itself) implies that the mere fact that an "accident" has occurred is deemed to be evidence of negligence. Such a philosophy would amount to no-fault liability, which does not apply to medical practice in this country.
It's like saying, "the patient died, so the doctors MUST have got it wrong"! That simply does not apply to medical negligence litigation. There are, however, some notable exceptions, the classic example being swabs left in the abdominal cavity. Even if the surgeon produces evidence that he takes all necessary precautions to prevent this occurring, he will nevertheless be found negligent. That makes sense when you think about it, but what if the same surgeon has a difficult op, with excessive bleeding, and the patient eventually dies on ITU? He should not automatically be found negligent, for there may be many factors that led to the patient's death, and negligence is only one possible factor. "Res ipsa loquitur" is, however, being increasingly used as supporting argument with other areas of medical practice, particularly specific complications of surgical and anaesthetic procedures, but it is not automatically accepted by courts without other evidence and supporting argument.
Clearly in this particular case (Kettering) the court found that the patient died of natural causes aggravated by neglect, but this was nothing to do with "res ipsa loquitur" which considers only the outcome of a case and prejudges on that basis alone. In current medical negligence litigation, however, the processes that lead to the adverse outcome are considered in detail before reaching a judgement on liability.
Adrian Fogarty
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