Bar Exam — MBE (Multistate Bar Exam)TortsEasy
A patient underwent a routine outpatient surgical procedure. During the procedure, a surgical sponge was inadvertently left inside the patient's abdomen. The patient later experienced severe pain and required a second surgery to remove the sponge. The patient sued the surgeon for negligence. Which doctrine is most likely to apply to establish a prima facie case of negligence?
- ALast clear chance.
- BContributory negligence.
- CRes ipsa loquitur.
- DAssumption of risk.
Show answer & explanationAnswer & explanation
Correct answer: C. Res ipsa loquitur.
Res ipsa loquitur ('the thing speaks for itself') applies when the event causing injury would not ordinarily occur in the absence of negligence, the instrumentality causing the injury was under the exclusive control of the defendant, and the plaintiff did not contribute to the injury. Leaving a surgical sponge inside a patient clearly fits this doctrine.
Why the other options are wrong
- A. Last clear chance is a doctrine used to overcome a contributory negligence defense, not to establish negligence in the first place.
- B. Contributory negligence is a defense, not a doctrine to establish a prima facie case, and there's no indication the patient contributed to leaving the sponge.
- D. Assumption of risk is a defense, not a doctrine to establish a prima facie case, and a patient does not assume the risk of a surgeon leaving an object inside them.
Res Ipsa Loquitur
A doctrine in tort law that allows negligence to be inferred from the circumstances of an injury when the event would not ordinarily occur without negligence, the defendant had exclusive control, and the plaintiff did not contribute.
- Latin for 'the thing speaks for itself'.
- Shifts burden of proof regarding breach of duty.
- Requires event not ordinarily occur without negligence.
- Requires defendant's exclusive control over instrumentality.
Memory trick: Res Ipsa Loquitur: 'Remarkably, it speaks for itself, so the proof just fits itself!'