Shifting the Burden of Proof in Medical Malpractice Litigation–The Doctrine of Res Ipsa Loquitur
Medical malpractice is negligence by a healthcare provider when he or she deviates (through an act or omission of) from the recognized “standard of care” in the treatment of a patient accepted by the medical community.
In Korea, the physicians’ liability for the damage caused by medical malpractice could be sought through either by civil procedure or criminal trial. Although a criminal trial can be an effective way to impose punishment for negligence in the conduct of medical procedure, it cannot achieve proper compensation for the damaged patient. Therefore, victims of medical malpractice must bring an action for damage against the healthcare provider in order to achieve compensation. An estimated ten thousand medical malpractice cases take place per year, but only 10% are resolved through civil litigation. Statistics show that there were only 1,003 cases of medical malpractice lawsuit in 2013. In other words, even if patients ended up being injured from a medical error by healthcare providers, they were reluctant to proceed with a lawsuit.
Several explanations could account for the passive attitudes of patients toward medical malpractice litigation. One major factor is the current structure of the Korean legal system in which the patients hold the burden to prove healthcare providers’ negligence. The problem is that most patients cannot sustain the burden of proof, thus making it impossible for them to win the case.
To achieve an environment where patients can acquire proper compensation through litigation, the burden of proof must be shifted to the defendant who performed the medical treatment. This article will introduce and examine the doctrine of res ipsa loquitur from common law as a way of lowering the victim’s burden of proof in medical malpractice lawsuits.
Ⅱ. The Burden of Proof in Medical Malpractice Suit.
- The Structure of Burden of Proof in Medical Malpractice Suit in Korea
Victims of medical malpractice can claim a lawsuit against physicians according to Civil Act Article 390 or 750. Under Civil Act Article 390, the accuser can seek liability of the physician for breach of his or her obligations to exercise a reasonable skill, care and diligence in his or her performance. In this case, the plaintiff is required to demonstrate following five factors at trial: ① a medical contract between the defendant and the accuser, ② healthcare provider’s breach of that contract, ③ illegality of such violation, ④ resulted damage, ⑤ a casual relationship between breach of contract and resulted damage. Then, the defendant can deny legal liability proving that there was no negligence in his or her performance. Because a physician’s obligation in a medical contract is to exercise a reasonable skill, care and diligence, the accuser must demonstrate that there has been negligence in medical performance. In other words, the burden of proof of negligence actually falls not on the defendant but the accuser.Under the Civil Act Article 750, the patient as plaintiff must also prove five factors at trial: ① violation of other person’s right, ②illegality of the violation, ③ intentionality or negligence of the perpetrator, ④ damage as a consequence and the amount of damage, ⑤ a casual relationship between perpetrated violation and the damage. Hence, the plaintiff must demonstrate that there has been negligence of the defendant, and that such negligence caused the damage.
Problems of imposing burden of proof on patients are as follows. First, patients cannot sustain the burden of proof in most medical cases due to lack of knowledge and attainable evidence. Understanding the protocols and procedures in medicine requires professional knowledge that is usually obtained through years of training. People engaging in the medical field are equipped with the ability to handle any kind of medical information. The same level of expertise cannot be expected from patients. Moreover, patients are unconscious during surgery. Even if they wake up with injury, they cannot point out the specific act or omission of the medical professional which caused the damage. Second, such circumstances create barrier to any legal relief for the patient’s damage. Patients have only two to four percent chance of winning medical malpractice cases. This is a remarkably low winning rate when compared with litigations raised in other fields.The right of victims in medical malpractice is left unprotected. The legal community has acknowledged the difficulty of medical malpractice litigation and the limitations of applying the same burden of proof to plaintiffs as any other traditional civil litigation. Thus, discussions on ways of reducing burden of proof from the plaintiff or shifting the burden to prove to the defendant has taken place in legal society. Examples of cases from other countries, usually theories of burden, have been referred to as the probability theory; theories based on factual inference, and theories based on presupposition and coincidence. There have been discussions between scholars over choosing the most suitable theory for Korean society. Yet, there has not been any consent on that issue. Courts are also attempting to lower the patients’ burden of proof in several rulings. Nevertheless, court’s decision is not based on one coherent theory of burden of proof. The Supreme Court seems to be adopting different theories depending on the case. Thus the analyses on the burden of proof held by the Supreme Court differ from one another. For instance, there are opinions that the Supreme Court is applying all three theories discussed before: the probability theory, theories based on factual inference, and theories based on presupposition and coincidence. On the other hand, some scholars argue that Supreme Court decisions are adopting the factual inference theory.
It is necessary to establish a coherent theory that could be applied on the burden to prove to stabilize the legal system and to give a certain level of predictability to people raising medical malpractice lawsuits. The majority of discussions on burden of proof are based on theories adopted by Germany and Japan. However, this article will focus on how legal principle evolved in common law: the doctrine of res ipsa loquitur.
- Shifting the Burden of Proof to the Defendants –The Doctrine of Res Ipsa Loquitur
There have been various theories attempting to shift the burden of proof from the plaintiff to the defendants. Res ipsa loquitur translated in Latin means ‘‘the thing speaks for itself.’’ When someone is in control of or responsible for a property, that person is obligated to exercise reasonable duty of care in keeping his or her property safe. An accident might imply that reasonable duty of care has been neglected, and the accuser should provide all the evidence, if any, to prove such negligence. On the other hand, when res ipsa loquitur, is applied, the breach of obligation is so obvious that it could be presumed that the duty was breached thus the accuser does not bear the burden to prove negligence. Thus, negligence speaks for itself.
It must be pointed out that the general rule in the United States court requires the plaintiff to bear the burden of proof in litigation. In other words, the patients have burden to prove that the healthcare provider was negligent in a medical malpractice case. The role of res ipsa loquitur to address exceptions is justified.When doctrine of res ipsa loquitur is applied, the court can create a presumption of medical negligence. Then, the defendant bears the burden of proof to show that he or she exercised a reasonable skill, care and diligence in the performance of his or her obligations. The defendant holds the liability for the damaged claimed by the plaintiff unless he or she refutes the presumption of negligence.
Two requirements should be met in order to apply res ipsa loquitur to medical negligence cases. First, the plaintiff should demonstrate that the alleged damage could not have occurred unless there was medical negligence. Second, the alleged injury was resulted from a procedure that was under exclusive control of the defendant.
Doctrine of res ipsa loquitur was first cited by the Supreme Court in Byrne v Boadle.Byrne v. Boadle was not a medical malpractice lawsuit, but it was the first ruling that applied res ipsaloquitor. Res ipsa loquitur evolved over time in ways that would be relevant to medical malpractice disputes. To understand the doctrine, it is necessary to introduce significant cases in the history of res ipsaloquitor principle.,
- Overview of Cases
- Ybarra v Spangard Sonny
Ybarra v. Spangard was the first case to address the res ipsa loquitur doctrine in medical malpractice case. Before the Ybarra s. Spangar, courts had been hesitant to apply res ipsa loquitur in medical malpractice cases.
In late October 1939, Joseph Ybarra developed appendicitis. After the appendectomy was performed by physicians, Dr. Tilley, Mr. Ybarra could not control his arm. It was determined that he suffered a serious, permanent neurologic injury from pressure on his brachial plexus. However, since Mr. Ybarra was under anesthesia, he could not figure out who, out of all the surgeons and nurses present in the room during his surgery, was responsible for the injury. As Mr.Ybarra could not determine who the defendant was, the court settled this case by applying the res ipsaloquitur doctrine to shift the burden of proof to the defendants. The court assumed that Mr. Ybarra’s injury ordinarily could not have occurred other than by negligence- thus created presumption of negligence..
(2) Connors v University Associates in Obstetrics and Gynecology
In Connors v University Associates in Obstetrics and Gynecology, the patient who went through a surgery woke up with a neurologic injury. The issue in this case was whether the plaintiff could use expert testimony to support his or her claim. The purpose of introducing expert testimony was to educate the jury and help them create presumption of negligence. The court held that expert testimony that supports the alleged damage by the accuser will ‘‘bridge the gap between the jury’s common knowledge and the uncommon knowledge of experts.”
Defendants argued that res ipsa loquitur could not be applied to the case as there was no further evidence other than the injury itself which was not obvious enough to prove the medical negligence. However, the court decided to permit the plaintiff to introduce expert testimony to educate the jury and explain why the presumption of negligence could be made. The profound effect of this ruling was the expansion of influence of res ipsa loquitur. With the help of the expert’s testimony, res ipsa loquitur could be applied to more and more medical malpractice cases.
(3) Heastie v. Roberts
In this case the ruling alleviated the condition in which the presumption of negligence could be made, by stating that expert’s testimony is not always mandatory and could be replaced by testimony of any other person with a standard level of knowledge.
Almon Heastie, found intoxicated, was transported to Columbia Olympia Fields Osteopathic Hospital and Medical Center. Then, he was restricted in the cast room for threatening other patients with aggressive acts, where he caught on fire. He suffered from severe burns and was in coma for weeks.
In the lawsuit against the hospital, the defendants argued that res ipsa loquitur could not be invoked in the case because Heastie did not introduce expert’s testimony. However, the court noted that in Illinois law jurisdiction, the accuser is not always required to introduce expert’s testimony to invoke res ipsa loquitur. Instead, Illinois trial courts could rely on common knowledge, if the courts decide such knowledge is adequate.
- Implications of Res Ipsa Loquitur
It is widely accepted that res ipsa loquitur “forces an affirmative shift in the burden of proof from plaintiff to defendant”.Res ipsa loquitur will mitigate the burden of proof that patient s hold in a medical lawsuit if it is adopted in Korean legal system. This will provide legal relief for victims of medical errors and achieve coherence in court decision on medical malpractice cases.
Victims of medical malpractice have hardly been able to pursue proper compensation for their damage due to the burden of proof they bear in medical lawsuits. Although there have been efforts in the Korean legal community to lower the patient’s burden of proof in a medical malpractice lawsuit, they have not been effective in improving the chances of patients winning the case.
Adopting the doctrine of res ipsa loquitur can be an effective way to mitigate the burden of proof that patients must bear in a medical malpractice lawsuit. Under res ipsa loquitur, presumption of physician’s negligence can be created when victim’s damage does not ordinarily occur unless there is medical negligence.and alleged injury was caused by a procedure that was under exclusive control of the health care provider. Unless the health care provider rebuts the presumption, he or she will be obligated to compensate for the damage caused by the medical error. Medical malpractice litigation in Korea, when combined with res ipsa loquitur doctrine, will start functioning as an actual measure to achieve proper compensation for the damaged patients.
It is necessary to shift the burden of proof from the plaintiff (the patient) to the defendant (the health care provider) in order to provide patients with legal relief from medical malpractice. Res ipsa loquitur, Latin for ‘‘the thing speaks for itself’’ is a doctrine applied in common law to address an exception in which the defendant’s negligence is presumed. As the defendant has the burden of proof to rebut that presumption, the accuser no longer holds the burden to prove negligence. This article is intended to introduce res ipsa loquitur as an alternative to current structure of burden of proof at medical malpractice trial.
See generally Bal, B. S. & Brenner, L. H., Medicolegal Sidebar: The Law and Social Values: Res Ipsa Loquitur, Clinical Orthopaedics & Related Research. Vol. 473, Issue 1, 23 (Jan. 2015).
 YooInKyung, Difficulty of Winning a Medical Lawsuit Case and Inappropriate Provision of Compensation for Patients Through Trial (trans. by writer), Weekly Kyunghyang Vol. 1102 (Nov. 25, 2014), http://weekly.khan.co.kr/khnm.html?mode=view&code=115&artid=201411181129581&pt=nv (last visited Jul. 18, 2015).
 Kim, Il-Ryong, The Structure of Burden of Proof in Medical Malpractice Suit revealed in Judicial Precedent, Bio-medical and Law (trans. by writer), Vol. 6, 7, 8 (Dec. 2011).
 Id. at 8.
 Id. at 8.
Lee, Jeong-Hwan, Mitigation of burden of proof on malpractice suit – Theories based on presupposition and coincidence –, medical and Law (trans. by writer), Vol. 7, 151, 153 (Jun. 2012).
 Supra note 6, at 153.
 Id. at 153.
 BAL, B and BRENNER & L. Medicolegal Sidebar: The Law and Social Values: Res Ipsa Loquitur, Clinical Orthopaedics & Related Research, Vol. 473, Issue 1, 24 (Jan. 2015).
 Id. at 24.
 Id. at 24.
 Id. at 24.
 Id. at 24.
 Id. at 24.
 Clayton, Roger R. & Jesse A. Placher, Health Law IDC Quarterly Vol.18, No. 1, 24, 25 (2008).
 Supra note 10, at 24.
 Id. at 24.
 Ybarra v. Spangard, 25 Cal. 2d 486 (1944).
Supra note 16, at 25.
 Connors v University Associates in Obstetrics and Gynecology, 4 F3d 123 (2d Cir 1993).
 Ibid.; supra note 20.
 Supra note 16, at 24.
 Webb, G.G., The Law of Falling Objects: Byrne v. Boadle and the Birth of Res Ipsa Loquitur , Stanford Law Review, Vol. 59, Issue 4, 1065, 1066 (Feb. 2007).