In a medical malpractice case, the victim usually has to present the testimony of a medical expert in support of the claim. The expert testimony will show the jury that there was wrongdoing by the medical practitioner, and such wrongdoing caused the injury, and the resulting injury is significant or permanent. However, in certain instances, a medical malpractice case will not need the expert testimony of a medical expert. The legal phrase for "expert testimony not required" is "Res Ipsa Loquitor".

When Res Ipsa Loquitor can be Implemented

Res Ipsa Loquitor is quite common in other types of cases, but for a medical malpractice case, expert medical testimony is usually required for supporting the claim. However, in certain instances, it may not be required.

This can be illustrated with a practical example. For instance, a patient undergoes surgery on his left arm, and the surgery is successful. However, when he comes out of the operating theater, there is a bandage on his right arm, and doctor tells him he suffered a third degree burn during the surgery. In this instance, the malpractice seems obvious, since there is no way a surgery performed on the left arm can cause a third degree burn on the right arm.

For Res Ipsa Loquitor to be applicable, three important aspects have to be looked into, which are:

Whether the injury would have happened without negligence
Whether the patient caused or contributed towards the injury
Whether the patient was not in exclusive control of the hospital or doctor when the injury occurred

If the answers to all these questions is no, then Res Ipsa Loquitor is applicable, and the victim does not need the testimony of a medical expert to support his claim.

Res Ipsa Loquitor is Applicable

In the example, the doctors were using a heating device to cauterize the bleeding blood vessels of the left arm, where the surgery was being performed. However, while using the device, the doctors inadvertently touched the fabric covering the right arm of the patient, which burst into flames causing the third degree burns. In this instance, Res Ipsa Loquitor will be applicable, since the answer will be no to all the three previous questions.

  • The third degree burn could not have happened unless there was negligence
  • The patient was under anesthesia when the injury happened, which means he could not have possibly contributed or caused the injury
  • The patient was undergoing surgery when the injury happened, which means he was in not exclusive control of the hospital and the surgeon

In this case, Res Ipsa Loquitor can be used not as a separate pleading, but as part of the claim in the bill of particulars. This means there is not any need to bring in a medical expert to testify in support of the claim.

Despite this Status

Nevertheless, when you want to implement the best legal practices, it is better to call an expert witness, who will be able to explain clearly to the jury the type of surgery, and why the burns, never should have occurred.


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