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Ryan R. Bradley
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Res Ipsa Loquitur: When Negligence is REALLY Obvious


This Post was originally published at Illinois Plaintiff’s Lawyer, our sister Blog Maintained by Koester & Bradley, LLP

A surgeon amputates the wrong leg.

A patient develops a bedsore in a hospital that he did not have before.

A patient is burned in an MRI machine because due to the presence of metal.

A brand new bridge collapses injuring many.

A man is set on fire in an emergency room.


In these situations, Attorneys may prove negligence by simply proving that the event occurred.  This is an important tool for the injured to protect their rights in Illinois and arises many time in the medical malpractice setting.

Res ipsa loquitur is not just a remnant from days gone by as a schoolboy.  It is a legal term that means “the thing (negligent act) speaks for itself.” This phrase stands for an evidentiary rule personal injury attorneys in Illinois and many other states can use in some circumstances to bring a personal injury action in the absence specific evidence of negligence. The injured party may meet its prima facie (latin for first encounter) burden of proof in a negligence action in the absence of specific evidence that the defendant was negligent because the injury would not ordinarily occur in the absence of the defendant’s negligence. For example, if a truck were driving on a newly built bridge and the bridge collapsed, there would be an inference that the contractor who built the road was responsible. Res ipsa in Illinois is not absolute negligence: the bridge contractor’s attorney, in this example, would have the opportunity to rebut the inference of negligence by proving that bridge collapsed for a different reason such as evidence that the truck weighed more than federal or state regulations allowed.

In Illinois, there are three elements an attorney must prove in a personal injury case in order to the create an inference of negligence on the part of a defendant: (1) a casualty of a kind that does not ordinarily occur absent negligence, (2) that was caused by an instrumentality exclusively in the defendant’s control, and (3) that was not caused by an act or omission of the plaintiff.  The Illinois Pattern Jury Instructions provide good guidance.

Proving res ipsa is no easy task in Illinois, and it is important that if you or a loved one is the victim of clearly negligent acts, you consult an experienced attorney that practices in your town in Central Illinois.


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  1. jc says:
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    Do they have Res Ipsa Loquitur for plaintiff attorneys? I got sued because my name was on a patient’s chart. Another time I got sued for 6 years because of a typographical error for which I had no responsibility. Then there was the time I was sued for ten years because a patient did not take an aspirin after being told to take aspirin. All those three frivolous cases were dismissed. Why can’t I sue the plaintiff attorneys under the doctrine of Res Ipsa Loquitur?

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      I am sorry for your experiences. In Illinois, pursuant to Statute, every medical malpractice case is reviewed by and certified by a doctor. It sounds like the cases against you were frivolous which is too bad.

  2. jc says:
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    Ryan, in Ohio, an affidavit of merit is also required. On those frivolous cases, the plaintiff attorney was able to find some “whore” expert witness to sign the affidavit of merit and testify in the case for a significant fee. Ofcourse, their testimony blew up on cross examination–and I was found innocent! That does not make up for years and years of worry and distress. We need a better way!

  3. jc says:
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    Here’s a legitimate idea which could at least reduce the time of friviolus malpractice litigation. Why not give the plaintiff attorney and his client 90 days after the last expert witness has been deposed to make a decision on the case. If the plaintiff decides that they have a meritorious case, let them continue as long as they wish. But if the plaintiff attorney is simply dragging out a frivolous case because he wants to recoup his litigation costs, well, give the doctor a cause of action to sue the plaintiff attorney for “delay damages” of $5,000/month. That way, a malpractice suit can be filed, but once the experts have testified, if it is a frivolous suit and it goes on, well the plaintiff attorney better have deep pockets because the doc is going to countersue if it is a frivolous lawsuit. This would also give docs leverage to get frivolous cases dropped sooneer instead of having to spend 10 years with litigation because a patient did not get an aspirin, like I did.

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Illinois Plaintiffs Lawyer by Koester & Bradley