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August 31 - Newsblog #1
Your Injury Attorneys in the News: Homeowner and Wife Sue over Police Shooting
September 7 - Newsblog #2
Your Injury Attorneys in the News: Homeowner’s Possession of Handgun Legal Under 2nd Amendment
September 14 - Newsblog #3
Your Injury Attorneys in the News: if a Government or Government Agency is at Fault, You Can Sue
September 21 - Newsblog #4
Your Injury Attorneys in the News: Lawsuit Against Police Department Invokes the Civil Rights Act
September 28 - Newsblog #5
Your Injury Attorneys in the News: a Clear Line from the Action – or Inaction – to the Injury
October 12 - Newsblog #6
Your Injury Attorneys in the News: Police Insensitivity Turns Traffic Stop into a Travesty
October 19 - Newsblog #7
Your Injury Attorneys in the News: Police Who Abuse Power Must Be Held Accountable, Law Professor States
October 26 - Newsblog #8
Your Injury Attorneys in the News: Holding Overly Aggressive Police Accountable
November 2 - Newsblog #9
Your Injury Attorneys in the News: Brown Vs. Impd Case About Much More Than Punishment or Money
November 9 - Newsblog #10
Your Injury Attorneys in the News: Improper Medical Diagnosis and Care Resulted in Loss of an Eye
November 16 - Newsblog #11
Your Injury Attorneys in the News: Medical Malpractice Claims Have a Front End and a Back End
November 30 - Newsblog #12
Your Injury Attorneys in the News: Truths About Medical Malpractice
December 7 - Newsblog #13
Your Injury Attorneys in the News: Yes, You Can Sue City Hall
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Your Injury Attorneys in the News: Slip and Fall Changes Two Lives Forever
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In the News: Ramey & Hailey Year in Review
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In the News: Teen’s Sexual Abuse Case Calls Attention to the Problem
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In the News: Erin Brockovich Teams Up with Indiana Moms
January 25 - Newsblog #19
Your Injury Attorneys in the News: Case Settled in Favor of Catastrophic Slip and Fall Injury Victim
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In the News: Wrongful Death Lawsuit Filed Against Rehab Facility
February 8 - Newsblog #21
In the News: Nurse Arrested in Sexual Abuse Case
February 15 - Newsblog #22
In the News: Running the Clock on Indiana Medical Malpractice
February 22 - Newsblog #23
In the News: to Repeal or Not to Repeal – Indiana Legislators Rule “not”
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In the News: Helping Physicians Keep Helping
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In the News: Parents of Brain-damaged Infant Sue Hospital
March 15 - Newsblog #26
In the News: Owner of Gun Wins Decision
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In the News: Indiana House Passes Long Term Care Protections Bill
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In the News: Slip-and-fall Victim Wins Right to Sue Dollar Tree
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In the News: Inspection Report Shows Vets Harmed at 52 Nursing Homes
April 19 - Newsblog #30
In the News: Sandwich Diversion Causes Fatal Two-semitrailer Crash
April 26 - Newsblog #31
In the News: Does Premises Liability Cover Goose Attacks?
May 3 - Newsblog #32
Two-week-old N.y. Verdict Offers Takeaways for Slip and Fall Victims
May 10 - Newsblog #33
In the News: $7.8 Million Construction Injury Settlment Highlights Rash of New Contruction Accidents
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In the News: Barrel Blast Triggers Wrongful Death Lawsuit
May 24 - Newsblog #35
In the News: when a Product Manufacturer is Not at Fault
May 31 - Newsblog #36
In the News – College Doc’s Sexual Abuse of Students Coming to Light
June 7 - Newsblog #37
In the News – One Week, Four Motorcycle Accidents
June 14 - Newsblog #38
List of Troubled Nursing Homes Released
June 21 - Newsblog #39
In the News: Kansas No-caps Ruling Changes Personal Injury Climate
June 28 - Newsblog #40
In the News: Jury Awards $10.5 Million for Pain and Suffering in Birth Injury Case
July 5 - Newsblog #41
In the News: More Indicted in Last Year’s Duck Boat Tragedy
July 17 - Newsblog #42
In the News: Richard Hailey on Litigation Team for Lawsuit Vs. Tesla
July 24 - Newsblog #43
In the News: Malpractice Lawsuit Yields Largest Award in History
August 28 - Newsblog #44
In the News: Trucks V. Passenger Cars – Score 18:116. Everybody Loses
September 25 - Newsblog #45
Yes, Sex Trafficking is Happening in Indiana
October 30 - Newsblog #46
In the News: Product Liability Cases in 2019
November 13 - Newsblog #47
In the News: Arbitration Clauses Allowed in Indiana Nursing Home Contracts
November 27 - Newsblog #48
In the News: $101 Million Birth Injury Settlement Awarded
December 4 - Newsblog #49
In the News: High School Chaplain Suspended on Allegations of Sexual Abuse
December 11 - Newsblog #50
In the News: Franklin, Indiana Continues to Face Toxic Waste Problem
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In the News: Parents of Bus Accident Victim Awarded $20 Million
January 8 - Newsblog #52
In the News: Parents Sue After Daughter’s Brain Damaged in Surgery
January 29 - Newsblog #53
In the News: Trucking Accidents Due to Careless Driving Increase
February 19 - Newsblog #54
Indiana Authorities Buy More Time to Prosecute Child Abusers
February 26 - Newsblog #55
In the News: Teen Brain-injured at Birth Awarded $15.1 Million
March 4 - Newsblog #56
In the News: Did Connecticut School Officials Turn a Deaf Ear to Sexual or Physical Abuse?
March 18 - Newsblog #57
In the News: Facility Held to Blame for Medical Treatment Delivered in a Careless and Negligent Manner
April 1 - Newsblog #58
In the News: Emergency Measures Instituted in Indiana’s Judicial System
April 8 - Newsblog #59
In the News: Medical Malpractice Limits Challenged in California
April 15 - Newsblog #60
In the News: Indiana Supreme Court Issues Five Orders for Legal Proceedings
May 6 - Newsblog #61
In the News: Nursing Homes with Covid-19 Cases Have Been Violating Federal Infection Control Rules for Years
May 13 - Newsblog #62
In the News: Physician Not Negligent in Choosing One Treatment over Another
June 3 - Newsblog #63
In the News: Indiana Undercounting Covid-19 Deaths?
June 17 - Newsblog #64
In the News: Ruling Reverse on Police Shooting – New News, Old Story?
July 8 - Newsblog #65
In the News: What is This Thing Called Qualified Immunity?
July 15 - Newsblog #66
In the News: Sooner or Later for Virus-delayed Jury Trials
July 29 - Newsblog #67
In the News: Truck Driver Sentenced, Another Charged in Fatal Crashes
August 12 - Newsblog #68
In the News: Double-booked Doctors Cause Personal Injury to Patients
August 26 - Newsblog #69
In the News: $4.9m Auto Accident Settlement Teaches Many Lessons
September 2 - Newsblog #70
In the News: Negligence Unmasked at Pennsyvania Trial
September 9 - Newsblog #71
In the News: Double-booked Doctors Cause Personal Injury to Patients
September 27 - Newsblog #72
In the News: Heart Rhythm Drug Poisoned Patient’s Lungs
October 14 - Newsblog #73
In the News: Prisoner Vs. Prison – a Tale of Two Medical Negligence Lawsuits
October 28 - Newsblog #74
In the News: Richard Hailey Serves As Co-counsel in Tragic Texas Medical Malpractice Case
November 4 - Newsblog #75
In the News: Mesothelioma Trials Move Ahead, Pandemic Notwithstanding
November 4 - Newsblog #76
In the News: Richard Hailey Serves As Co-counsel in Tragic Medical Malpractice Case
November 4 - Newsblog #77
In the News: Mesothelioma Trials Move Ahead, Pandemic Notwithstanding
November 18 - Newsblog #78
In the News: Two-year-old Shoots Mom in Tragic Reminder of the Need for Safe Storage of Guns
December 30 - Newsblog #79
In the News: when ‘ghost Guns’ Cause Real Deaths
January 13 - Newsblog #80
In the News: when Police Dogs Cause Personal Injury to the Innocent
January 27 - Newsblog #81
In the News: Old List of Six Proves Very Relevant Today
February 24 - Newsblog #82
In the News: Indiana Nursing Homes Shielded from Covid-19 Liability Suits 

March 10 - Newsblog #83
In the News: Online Hunters out to Halt Child Abuse
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In the News: Toxic Talc Still a Problem
April 14 - Newsblog #85
In the News: Va Hospital Wrongful Death Verdict Increased After-the-fact
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Think You Don’t Need a Doctor After Being Hit by a Car? Think Again!
May 5 - Newsblog #87
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In the News: Shaquille Kelly Shot by Police in Ft. Wayne
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In the News: Cement Plant to Pay $700k for Spewing Pollutants
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In the News: Estate of Man Killed by Police Sues Indianapolis
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In the News: Vehicular Homicide Result of Impairment and Speed
July 28 - Newsblog #92
In the News: Two Recent Drownings Call Attention to Dangers 

July 28 - Newsblog #93
Driving Phobia Ptsd Can Be Grounds for a Personal Injury Lawsuit
August 4 - Newsblog #94
In the News – Sexual Abuse Claim Ruled Outdated
August 18 - Newsblog #95
In the News – New Study Questions Pollution Levels in Franklin, Indiana
September 1 - Newsblog #96
In the News – Two Corporations Punished for Failure to Warn
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In the News – Tesla Autopilot Investigation Highlights Product Liability Issues
October 27 - Newsblog #98
In the News – Irish Hospital Apologizes to Six Year Old for Medical Injury
November 3 - Newsblog #99
In the News – Nursing Homes Fail to Report Covid-19 Deaths to Osha
November 11 - Newsblog #100
In the News: Bicycle Injuries and Fatalities Hit Home in Indiana
December 15 - Newsblog #101
In the News: Children Killed by Dui – the Wrongest of Wrongful Deaths
December 22 - Newsblog #102
In the News: Parents of Girl Who Drowned Sue City of Princeton
January 5 - Newsblog #103
In the News: 50 Indiana Children Dead of Neglect and Abuse in 2020
January 19 - Newsblog #104
Did Church Protect Pastor, Not Children?
February 16 - Newsblog #105
In the News: $10 Million Verdict in Rv/pedestrian Accident
March 30 - Newsblog #106
In the News: Carmel Priest Suspended for Alleged Child Abuse
April 20 - Newsblog #107
In the News: the Effects of Child Abuse – Way Beyond Blue Water or Pinwheels

Medical Malpractice Newsletter

“Res Ipsa Loquitur” and Medical Malpractice Lawsuits

Medical malpractice lawsuits are usually based upon a claim that a health care provider was negligent. To establish negligence, the plaintiff must prove the practitioner’s actions fell below the accepted standard of care, i.e., the degree of care a reasonable, similarly qualified health care provider would have provided under the same or similar circumstances. Establishing that a provider’s actions fell below the standard of care often involves the expert testimony of other health care professionals in the same field of medicine.

Frequently patients are unconscious when the negligent act occurs or there is insufficient documentation regarding the health care practitioner’s participation during the medical procedure. When this is the case, it may be difficult to prove negligence, even with the assistance of experts. In such circumstances, some states allow patients to rely on a legal doctrine called “res ipsa loquitur” to establish liability.

Establishing Liability When Few Facts are Available

Res ipsa loquitur,” often referred to simply as “res ipsa,” is Latin for “the thing speaks for itself.” Res ipsa loquitur allows plaintiffs to use circumstantial evidence to infer negligence. The popularity of the doctrine grew significantly following the landmark 1863 English case Byrne v. Boadle. In Byrne, a man had been outside a flour dealer when a barrel of flour fell out of a window and struck him, knocking him unconscious. Although the man was unable to present any direct evidence of negligence, the court invoked res ipsa loquitur and inferred negligence against the flour company based on the surrounding circumstances.

Raising Res Ipsa Loquitur in Medical Malpractice

In the medical malpractice context, if the following elements are established, there is a stronger likelihood that a plaintiff will successfully establish liability under res ipsa loquitur:

  1. Evidence regarding the actual negligent act and cause of injury is unobtainable
  2. The practitioner has superior knowledge or means of obtaining evidence about the cause of the injury
  3. The type of injury does not ordinarily occur in the absence of negligence
  4. The patient was not responsible for the injury
  5. The practitioner was responsible for the patient’s welfare at the time of the injury
  6. The practitioner had exclusive control over the circumstances that led to the injury

Shifting of the Burden of Proof

Under res ipsa loquitur, once the plaintiff presents evidence regarding the existence of the above elements (or those required in the particular jurisdiction), the court instructs the jury to presume that the practitioner was negligent and the burden of proof shifts to the practitioner to prove otherwise. This approach is particularly useful in medical malpractice cases where a surgeon amputates the wrong limb or an instrument is left inside a patient. When the facts establish res ipsa loquitur, the patient need not prove who committed the improper act. Rather, the court instructs the jury to infer that the health care provider was negligent, while the health care provider must prove otherwise.

State Differences in Applicability of Res Ipsa Loquitur

Laws differ among states regarding the applicability of res ipsa loquitur in medical malpractice cases. One particular difference which seems to be a divisive issue is its applicability where expert testimony regarding negligence is also presented. Specifically, some states assert that where expert testimony is used, the doctrine of res ipsa loquitur is unnecessary and inapplicable since the matter at issue is not of common knowledge. (This might be a particularly useful argument where the malpractice at issue involves complex surgical procedures). Other states disagree and hold that res ipsa loquitur evidence should be permitted in conjunction with expert testimony, since the facts and procedures at issue essentially become the common knowledge of the jurors (through the use of such testimony), allowing the jurors to infer negligence.

This issue was addressed in the 1993 Second Circuit Court of Appeals case Connors v. University Associates in Obstetrics and Gynecology, Inc. In Connors, a Vermont patient and her husband brought a claim for medical malpractice, alleging that the treating health care providers negligently performed a surgery, which included a hysteroscopy and a laparoscopy. Along with raising negligence, the plaintiffs also requested that the court instruct the jury regarding res ipsa loquitur.

After the plaintiffs won an $800,000 judgment, the defendants asserted that the court improperly instructed the jury regarding res ipsa loquitur. Specifically, the defendants asserted that where expert testimony is presented, res ipsa loquitur should not be applicable. However, the appellate court ruled that the instruction was proper. In making its decision, the court noted that “it would make little sense for a plaintiff to be denied the res ipsa instruction because expert testimony was needed to bridge the gap between the jury’s common knowledge and the knowledge needed to evaluate the claim.” The court’s analysis also noted that its decision was in line with the Restatement of Torts, a legal treatise heavily relied upon by lawyers and lawmakers.

According to Connors, the following states have chosen to allow res ipsa loquitur evidence in conjunction with expert testimony: California, Hawaii, Illinois, Kansas, Louisiana, Michigan, New Jersey, Ohio, Pennsylvania, Rhode Island, South Dakota, Wisconsin and Washington. States ruling otherwise include: Florida, Idaho, Iowa, Maryland, Massachusetts, Minnesota, North Dakota, Tennessee and Texas.

To ensure the proper applicability of res ipsa loquitur, the judicial interpretations of state statutes must be considered. Such rulings sometimes add limitations or restrictions to a statute’s applicability.

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    While the pleading and proof requirements for a medical malpractice action can vary significantly from state to state, most states require the injured patient to show that the practicing physician failed to act in accord with the... Read more.
  • Lack of Informed Consent in Medical Malpractice
    Prior to initiating any medical procedure, a health care provider should obtain the patient’s “informed consent.” What constitutes informed consent varies from state to state, but usually includes a discussion with the... Read more.
  • Structured Settlements
    There are numerous legal situations in which a person may receive a large sum of money through a court award or settlement. Often arising as compensation for personal injuries or other acts, most such payouts are reduced due to some or... Read more.
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