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8 U.S.F. L. Rev. 343 (1973-1974)
Res Ipsa Loquitur: Its Place in Medical Malpractice Litigation

handle is hein.journals/usflr8 and id is 355 raw text is: RES IPSA LOQUITUR: ITS PLACE IN MEDICAL MALPRACTICE LITIGATION INTRODUCTION A patient who is injured during medical treatment faces many pit- falls in bringing a successful malpractice suit. Not only are the inher- ent complexities of the injury usually beyond most patients' compre- hension, but the patient is frequently unconscious at the time of the mjury. Consequently, the plaintiff may lack knowledge of what hap- pened. The defendant, who was originally in control of the potential causes of the injury, possesses either a superior knowledge of what hap- pended or the best opportunity to obtain evidence concerning the in- jury.1 The medical profession's conspiracy of silence-the unwilling- ness of its members to testify against each other-presents another block to the plaintiff.2 Res ipsa loquitur is a theory of recovery that can be used by the patient-plaintiff to ease some of these obstacles in malpractice litigation. This comment will analyze the doctrine of res ipsa as applied in medical malpractice litigation. Part I presents a brief history of the doctrine as it has evolved in California, followed by a discussion of 1. A number of California cases have noted the doctor's superior knowledge in applying res ipsa in medical malpractice. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486, 490, 154 P.2d 687, 689 (1944) which states that the particular force and justice of the rule is due to the inaccessibility of the evidence to the patient and the accessi- bility of the evidence to the doctor. The superior knowledge of the defendant has been a persuasive reason for using res ipsa in malpractice cases. See, e.g., Comment, Res Ipsa Loquitur in Medical Malpractice Cases, The Superior Knowledge Factor, 9 HAST. L.J. 322 (1958) and Comment, Medical Malpractice-Res Ipsa Loquitur and Informed Consent in Anesthesia Cases, 16 DE PAUL L. REV. 432 (1967). The author gratefully acknowledges the assistance of Mr. Robert L. Bianco, Member, San Francisco and California Bar Associations, for sources otherwise unavailable. 2. The reluctance of doctors to testify for malpractice plaintiffs has often been recognized by the courts. See, e.g., Agnew v. Parks, 172 Cal. App. 2d 756, 343 P.2d 118 (1959) (woman filed an unsuccessful suit against the local medical society alleging a conspiracy to deprive her of medical testimony). Numerous articles have been de- voted to the subject. See, e.g., Belli, An Ancient Therapy Still Applied: The Silent Medical Treatment, 1 VILL. L. REv. 250 (1956); Comment, Malpractice and Medical Testimony, 77 HARV. L. REV. 333 (1963); Kelner, The Silent Doctors-The Conspiracy of Silence, 5 U. RICHMOND L. REV. 119 (1970). There is evidence that the conspir- acy of silence still exists in California. This author has recently conducted interviews with practicing lawyers in San Francisco. Plaintiffs' attorneys indicated that doctors rarely testify when they have first hand knowledge as witnesses to the alleged negli- gence. The problem is said to exist more acutely in less populated areas of the state.

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