Shifting the Burden of Proof

Read the Discussion 04.2 Scenario. Refer to this scenario to answer the questions below.

1.Discuss why the doctrine of res ipsa loquitur would apply in this case. What are the elements of the doctrine, and how do the facts of this case satisfy those elements?

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2.How would shifting the burden of proof from the plaintiff to the defendants using res ipsa loquitur be helpful? Would the plaintiff be able to make a normal case for negligence without being able to prove exactly what took place while he was unconscious during surgery?

SCENARIO (BASED ON A REAL MISSOURI CASE)

At a local Missouri hospital a patient had a total right knee replacement (arthoplasty) under general

anesthesia. However, upon awakening from the anesthesia, he immediately experienced pain in his

right hand, arm and shoulder which was not present before the surgery. This was not an expected

complication from the procedure. The patient sued the hospital and the surgeon for medical

malpractice.

The patient, being under anesthesia during the entire procedure, has no idea what went wrong during

the procedure. The medical records also do not shed light on the matter, and there was no video

recording of the procedure.

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