Jeannine Williams-Davidson underwent surgery to remove her left adrenal gland at Stormont-Vail Hospital. The surgeon who performed the operation misidentified her pancreas as her adrenal gland and removed a portion of the pancreas instead. Jeannine required further surgery and ongoing medical treatment, both to remove the remaining diseased adrenal gland and to repair the damage to her pancreas.
Jeannine and her husband Jeffrey Davidson brought medical malpractice, contract, and KCPA claims against Dr. Nason Lui, Stormont-Vail Healthcare, Inc., Stormont-Vail, Inc., d/b/a Cotton-O’Neil, and other Doe Corporations (Defendants) based on this mistake, as well as other alleged conduct.
The district court granted summary judgment to Defendants on the Davidsons’ medical malpractice claims because the Davidsons did not designate a medical expert to testify about the standard of care for performing Jeannine’s first surgery or whether the surgeon failed to meet that standard. It dismissed their remaining claims as moot after finding they all turned on the Davidsons’ allegations that the surgeon committed medical malpractice in Jeannine’s first surgery. The Davidsons appealed, arguing the common knowledge exception and the doctrine of res ipsa loquitur apply so expert testimony is not required to establish the standard of care or a breach of that standard in this situation. They also argued their contract and KCPA claims stand on their own and thus should not have been dismissed as moot.
Medical Malpractice Claim
To establish a medical malpractice claim, a plaintiff must prove the following: (1) The defendant owed the plaintiff a duty of care, requiring the defendant to exercise a certain standard of care to protect the plaintiff from injury; (2) the defendant breached that duty by deviating from the standard of care; (3) the plaintiff was injured; and (4) the injury proximately resulted from the defendant’s breach. The general rule presumes a physician or surgeon carefully and skillfully treated or operated on their patient, and no presumption of negligence is created by an injury or adverse result.
Because the diagnosis, care, and treatment of a patient are typically issues outside the knowledge of an average person, expert testimony generally is required to establish the relevant standard of care in medical malpractice cases. There are, however, exceptions to this requirement. Experts are not needed to establish the relevant standard of care where either the common-knowledge exception or the doctrine of res ipsa loquitur apply.
The common-knowledge exception can alleviate the need for expert testimony to establish the standard of care when a breach of reasonable care is apparent to and within the common knowledge and experience of the average layperson. The doctrine of res ipsa loquitur applies to allow negligence to be inferred when a layperson could find that the patient’s condition is such that it would ordinarily not have occurred had due care been exercised.
Common Knowledge Exception
The common-knowledge exception can apply to avoid use of an expert to establish the standard of care when what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of humankind generally. When the exception applies, lack of reasonable care may be established by lay testimony.
There are three essential elements to the common-knowledge exception: (1) the plaintiff has alleged medical malpractice; (2) the care or result of the care is patently bad; and (3) a person without the pertinent medical knowledge can assess the wrongfulness of the diagnosis, treatment, or care and attribute the plaintiff’s injury to the wrongful conduct without the help of expert testimony. Whether or not the common knowledge exception applies to a given set of facts is a question of law. It is a narrow exception and is rarely applied.
Res Ipsa Loquitur
The doctrine of res ipsa loquitur allows a plaintiff to establish negligence without direct proof of either the standard or the breach. Where common knowledge and experience show that a patient would not have been injured had due care been exercised, negligence can be inferred without the medical evidence which is ordinarily required to show not only what occurred but how and why it occurred.
The doctrine applies in a negligence action where there is no direct proof of negligence, but where circumstances are such as to leave no conclusion other than that the defendant is at fault. Because of the favorable presumption of skill and care and the nature of medical practice and treatment, which usually requires expert testimony to establish fault, the doctrine’s application is limited.
In its unpublished Memorandum Opinion filed on July 28, 2023, the Court of Appeals of the State of Kansas held: “Based on the facts here, we cannot say that a violation of the standard of care was beyond the understanding of a layperson. Dr. Lui intentionally removed a portion of Jeannine’s pancreas under the mistaken impression that it was her left adrenal gland. A person without the pertinent medical knowledge can assess whether Dr. Lui’s conduct was within the standard of care when he mistakenly removed a portion of a patient’s pancreas instead of the adrenal gland during an operation to remove the adrenal gland. We therefore find that the common-knowledge exception applies to alleviate the need for expert testimony regarding the standard of care.”
Source Williams-Davidson v. Lui, No. 124,946.
If you or a loved one may have been injured as a result of medical negligence or surgery on the wrong organ in Kansas or in another U.S. state, you should promptly find a Kansas medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice or wrong organ surgery claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.