Describe res ipsa loquitur and vicarious liability with examples.

Res Ipsa Loquitur

• Three conditions must be satisfied: the injury would not ordinarily occur without negligence; the thing causing the injury was under the exclusive control of the defendant; and the patient did not contribute to it
• Its effect is to reverse the burden OF proof. Ordinarily the complainant must prove negligence; where the doctrine applies, the doctor must explain how the injury occurred without negligence on their part. This is a formidable practical disadvantage
• Classical examples — a swab or instrument left in the abdomen after an operation; surgery on the wrong site, wrong side or wrong patient; a burn from a diathermy plate or hot water bottle in an anaesthetised patient; a transfusion of mismatched blood; a fracture sustained on the operating table; a needle broken and left in tissue; and death from an obviously excessive drug dose
• It is a rule of evidence, not of liability — the doctor may still rebut the presumption with an explanation the court accepts, though in practice the classical instances are very difficult to explain innocently

Vicarious Liability

• Three requirements — a relationship of master and servant (employer and employee); a negligent act by the servant; committed IN the course OF employment
• The employer is liable IN addition to the employee, not instead of them; both may be sued, and in practice the hospital is sued because it can pay — which is the practical reason the doctrine matters
• A hospital is liable for the negligence of its salaried doctors, nurses, technicians and other staff; for defective equipment; and for administrative failures such as inadequate staffing, wrong patient identification or failure to maintain records
• A consultant is generally not vicariously liable for hospital staff who are not their employees; but a surgeon is responsible for their own team and for what happens under their direction during an operation
• An "independent contractor" distinction is often argued — a visiting consultant may not be an employee — but Indian courts have taken a broad view where the hospital held the doctor out as providing its services, and hospitals have been held liable notwithstanding the contractual arrangement
• "captain OF the ship" doctrine — the older view that the surgeon is responsible for everything in the operating theatre. It has been substantially diluted, since the anaesthetist and others exercise independent professional judgement for which they answer themselves
• The employer who pays may recover from the negligent employee in principle, though this is rarely pursued

Applied Aspects

• Count the swabs and instruments, and record the count; a documented correct count by two people is the only practical answer to a res ipsa claim, and its absence is fatal
• Mark the site before operating and observe a surgical safety checklist with a formal pause; wrong-site surgery is entirely preventable and entirely indefensible
• Check blood before transfusion at the bedside, by two people, against the patient's identity band; a mismatched transfusion is a classical res ipsa case
• A hospital cannot escape liability by calling its doctors independent contractors where it holds them out as its own; and it remains liable for equipment, staffing and systems whatever the doctors' status
• Junior doctors are not shielded by seniority; they are personally liable for their own negligence, and the employer's liability is additional rather than substitutional
• Institutional indemnity does not always cover the individual; a doctor should confirm the scope of the hospital's cover and hold personal professional indemnity in addition
• The "captain of the ship" doctrine has been diluted; the anaesthetist and other specialists exercise independent judgement and answer for it themselves, and the surgeon is not automatically liable for everything in theatre
• Res ipsa loquitur reverses the burden, it does not decide the case; the doctor may still rebut it with an explanation the court accepts, though the classical instances are very hard to explain
• Document equipment checks and maintenance; a burn from a faulty diathermy plate is res ipsa against the surgeon and corporate negligence against the hospital simultaneously