Res ipsa loquitur in Canadian medical malpractice cases 1975-1988

There is a perception in some quarters that courts too often, in the interest of compensating victims, find the medical profession at fault for 'failed medical care' which does not amount to negligence. If this were true, judges would likely make liberal use of the evidentiary rules res ipsa loquitur. However, a study of Canadian medical malpractice cases from 1975 to 1988 indicates that this is not the case and that judges on the contrary reject such a liberal use of the rule. Res ipsa loquitur was pleaded in only 37 of 142 cases, it was applied in only 14 of these cases, and the defendant was found liable in only ten of the cases in which it was applied. Furthermore, there is little evidence in these cases that judges are as a matter of policy trying to find legal rules to justify compensating more victims of medical misadventure, regardless of fault. On the contrary, judges not infrequently express sympathy for the plaintiff but nevertheless find for the defendant.