Recently the Kansas courts decided a case involving medical malpractice where during the surgery a small piece of metal was left in the patient’s spinal disc. The issue on appeal was whether the plaintiff needed to present expert medical testimony.
The doctor after attempting to retrieve the broken tip could not do so. It was decided to wait to see if the broken tip resulted in any serious complications. The patient’s pain in her right leg was gone after the surgery, but then she developed pain on the left side. Eight months later a second surgery performed a discectomy and spinal fusion, removing the metal. The plaintiff had an engineer who had analyzed the metal involved in the tool testify the only possibility for the metal breaking was operator error. The defendant moved for summary judgment because the plaintiff had no expert witness defining the medical standard of care.
The court pointed out that a medical malpractice case involves the negligence of the healthcare professional in the diagnosis care or treatment of a patient. For the plaintiff to win the plaintiff must show that the physician owed the plaintiff a duty and had to meet or exceed a certain standard of care to protect the patient from injury. Second, the physician breaches this duty or deviated from the standard of care and find that the patient was injured because the injury resulted from the breach of care. Negligence can be proven either by direct or circumstantial evidence. But the jury cannot find negligence simply because of a lack of success or adverse result from treatment. Usually in a case like this involves issues outside of the knowledge of the average person so expert testimony is required. However, something called the common knowledge doctrine applies when a breach would be apparent to and within the common knowledge and experience of the average person even though they have no specialized medical training. There is another doctrine called res ipsa loquitur. This doctr
t the thing causing injury had to be within the exclusive control of the defendant. Second, the occurrence must be of such kind that rarely occurs absent someone’s negligence and finally the occurrence must not have been due to the contributory negligence of the plaintiff.ine is used when the layperson can find that the patient’s conditions were such that the injury ordinarily would not have occurred had due care been exercise. The court pointed out that you must have three conditions for this doctrine to apply to a particular case. Firs
The court ruled because of the medical testimony this sort of thing happens in less than one percent of the time that the jury could conclude that the instrument would not ordinarily break off and become lodged in person spine absent the surgeon’s failure to use proper care.