Question

32. George has a badly infected right foot. He goes to Herb, a doctor, who prescribes the foot must be amputated. George agrees. Herb does the operation. Unfortunately, Herb cuts off the wrong foot. If George now sues Herb, what special negligence doctrine might he use? Explain the doctrine, what George must show..and how it may apply to help George recover in this unfortunate situation.

Answer 1

The special negligence doctrine that would help George in this condition is Res Ipsa Loquitur. The doctrine means that ‘the thing speaks for itself’ and it helps the plaintiff to show that the defendant was negligent without providing direct evidence of that negligence. Here George can prove Herb’s negligence in operating the leg with the help of this doctrine even if he was unconscious when doctor has performed the operation. In order to use the doctrine, George must prove that

• The injury suffered by George was a type that does not usually happen except as a result of someone’s negligence.
• The instrument that caused the injury was under the exclusive control of the defendant or the negligence was probably due to the defendant.
• George did not contribute voluntarily to his own injuries
• Defendant Herb is in better position to explain events causing George’s injuries than George

Here George can show that Herb has probably caused the injuries than any other person and the left leg would not have cut in the absence of negligence while using the operating instrument which was under the exclusive control of doctor. George has not contributed towards negligence as he has clearly shown the problem with the right foot while determining the treatment and the evidence of the negligence is more available to the doctor as the patient may not be conscious or may not know about the events that happened during operation.

The doctrine will help George to get the damages by allowing the jury to infer negligence. In some courts, the doctrine will create a presumption of negligence which the defendant, Herb should rebut to avoid a directed verdict. In some courts, the doctrine will require the defendant to prove by a preponderance of the evidence that he did not act negligently.