Res ipsa loquitur doctrine is hard to base the arguments on in the court, and according to the polls among medical negligence solicitors, only 19% consider that using the doctrine is a reasonable in medical negligence practice. Nevertheless, there are cases when the plaintiff inflicted such damage that shows undeniable malpractice. In the case against the Voice of Cambridge Area Health Authority a patient suffered a brain injury due to the fact that he had a heart attack when he was under general anesthesia. The Court concluded that this was not supposed to happen under the described circumstances, and that therefore the accused had to provide an explanation of what happened that would prove the absence of criminal negligence in his actions.
The Canadian case of McDonald v. York County Hospital gives us the following example. In this case, the plaintiff was taken to hospital for treatment of ankle fracture and he went out of the hospital with an amputated leg. All the prerequisites of res ipsa loquitur doctrine were there: usually in such circumstances the patient does not lose his leg until clinical negligence takes place. The plaintiff could not explain what had happened and the accused could not explain it and the plaintiff have a doctor whose criminal negligence led to this injury.
The case of MacDonald reminds the case of Cassidy v. Ministry of Health in which the complainant admitted to the hospital for an operation to recover from a contracture of two fingers and left the hospital with four fingers. Jenning, the judge, found the complaint reasonable and according to him plaintiff had every right to say, ‘I went to the hospital to get cured and now I am unable to use one hand because of 4 fingers contractured instead of 2, and this would not have happened if I had been treated properly’. Although the principle of res ipsa loquitur does not automatically apply, there are several examples of ‘swabs affairs’, where this doctrine has been successfully applied.
In the case of Mahon v. Osborne the court decided that the patient could not know anything about how to use tampons during the operation and that it is therefore the surgeon should have perform the duty to make sure that after the operation no sponges were left in the body of the patient. Criminal liability does not preclude the possibility of bringing a civil action to the doctor. In most countries, doctors and hospitals are subjected to civil responsibility, and the patient or his legal representative in court impose pecuniary claim to the institution/doctor for the damage caused to health. The majority of claims in respect of damage caused to the patient are submitted to the civil courts because often there is no agreement between the doctor and the patient. In this regard, the patient files a civil suit against the clinic. This occurs not only in governmental, but also in private clinic cases. However, in the private sector, on the other hand, contractual relationships are oftentimes practised, hence it is possible to sue a doctor or clinic for damages under the contract.