Jeannine Williams-Davidson went to Stormont-Vail Hospital in Topeka to have an adrenal gland removed, but Dr. Nason Lui removed part of her pancreas instead. Another procedure and an extended hospital stay were required. The
hospital allegedly charged Williams-Davidson for both surgeries, her extra hospital stay, and all follow-up care.
About two years later, she and her husband sued Dr. Lui and the hospital for medical malpractice, other common-law claims, and violations of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. Because jurors and lay witnesses are not conversant with medical science, Kansas courts have long required a plaintiff to offer expert testimony to support a medical malpractice allegation. But because medical professionals do not have “a monopoly on common sense,” Kansas courts have also long recognized a “common knowledge exception,” which allows a plaintiff to proceed without expert testimony. That exception applies when 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 an average person.
Williams-Davidson and her husband believed the common-knowledge exception applied, so they pursued their claims without retaining an expert witness. The district court disagreed and granted summary judgment to the defendants. But on appeal, a majority of a Court of Appeals panel held that the exception applied to Dr. Lui’s removal of the wrong organ. In the panel majority’s view, “when a surgeon misidentifies and removes a healthy organ, leaving the organ intended to be operated on untouched, the outcome is so patently bad that the lack of reasonable care can be apparent and within the common knowledge of a layperson to establish a breach of the standard of care.” The panel majority therefore reversed the district court’s order and remanded for further proceedings.
The defendants petitioned the Supreme Court of the State of Kansas (“Kansas Supreme Court”) for review. They argued that the panel majority had erred by applying the common-knowledge exception and by remanding rather than evaluating other challenges the defendants had raised. One Kansas Supreme Court justice recused from any participation.
The Kansas Supreme Court granted review, but was equally divided. When an appellate court is equally divided, the lower court’s ruling stands. The Kansas Supreme Court therefore stated in its Per Curiam dated March 8, 2024, “Judgment of the Court of Appeals reversing the district court stands. Judgment of the district court is reversed, and the case is remanded with directions.”
Source Williams-Davidson v. Dr. Nason Lui, No. 124,946.
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