Obviously, you cannot throw the burden of proof onto the doctor just to make it easier for you. In order for your lawyer to plead res ipsa, you have to satisfy three conditions:
1. What
happened to you must be the sort of thing that does not n
ormally happen in the absence of medical malpractice or dental malpractice.
Like the patient finding his shoulder was damaged after an appendectomy, the injury has to be something that cannot be easily explained as a normal complication, such as having a sore foot for a few weeks after foot surgery, or your 90 year-old grandmother dying of a stroke. It has to be something out of the ordinary, and something the doctors never warned you about, such as finding that your baby is brain damaged after you were led to believe your pregnancy and delivery were normal.
2. Whatever was done was under the physician’s or dentist’s exclusive control.
The best example of this is a surgery in which the doctor has full authority and responsibility for everything that is done. It is known as the Captain of the Ship theory.
3. You were either unconscious at the time of your injury or doing exactly what you were told to do by the physician or dentist.
What happened was not due to any voluntary act on your part, and you were not guilty of contributory negligence.
In a New Jersey case, a doctor treated a woman for a chronic chest complaint without ever taking a chest x-ray. Finally, after six years, another doctor took an x-ray and found she had tuberculosis. When the first doctor was sued, he said it was the patient’s fault. If she did not improve in six years, she should have consulted another doctor. No one forced her to keep going back to him when she was not getting better. The court disagreed, stating that the patient could not be criticized for misplaced confidence in her doctor and following his orders faithfully. He had exclusive control and was the only one to blame.