October 3, 2019

The Supreme Court of Kentucky (“Kentucky Supreme Court”) held in its opinion filed on August 29, 2019: “we conclude that the res ipsa loquitor exception is inapplicable herein and expert opinion evidence is therefore required to establish causation. The expert testimony in this case failed to raise a genuine issue of material fact as to the causation element, and [the defendants] were therefore entitled to summary judgment as a matter of law. Accordingly, we reverse the decision of the Court of Appeals and reinstate the trial court’s order granting summary judgment and dismissing the claims against [the defendants].”

The Underlying Facts

The Kentucky medical malpractice plaintiff sued the defendant interventional radiologist and defendant hospital for medical malpractice, alleging that he suffered a stroke following his four-vessel cerebral angiogram that was not timely diagnosed or treated, thereby leading to additional harm. The plaintiff did not contend that the angiogram was performed negligently or that the angiogram caused his stroke but rather the failure to examine and diagnose the stroke after the angiogram was medical negligence and caused injury greater than that which the stroke would have caused with earlier intervention.

The plaintiff’s expert criticized the defendant interventional radiologist for his failure to examine the plaintiff when his symptoms were consistent with a stroke following the angiogram but the expert did not opine that the defendant could have limited the effects of the stroke through earlier intervention. When asked specifically during his deposition whether he could state within a reasonable degree of medical probability that the defendant’s post-procedure care was a substantial factor in causing harm to the plaintiff, the plaintiff’s expert responded that it was “impossible to tell.”

The defendants filed a motion for summary judgment, which the trial court granted. The plaintiff appealed to the Kentucky Court of Appeals, which reversed summary judgment for the defendants, finding that the issue of causation in this case did not require expert medical testimony: “Given the ubiquity of information regarding stroke symptom identification and the necessity of prompt treatment, it has become common knowledge that ‘time lost is brain lost’ as to timely medical intervention.” In other words, a jury of laymen with this general knowledge could resolve the causation issue without the aid of expert testimony.

Kentucky Supreme Court Opinion

The Kentucky Supreme Court stated that Kentucky law recognizes two exceptions to the expert testimony requirement in Kentucky medical malpractice cases. In some cases, the defendant physician makes certain admissions that make his negligence apparent. The other exception, res ipsa loquitur, arises in cases in which the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts.

The Kentucky Supreme Court stated with regard to the present case, “Although public service campaigns have increased public awareness and knowledge about stroke symptoms and timely intervention, that general information cannot provide the medical expertise necessary to evaluate this particular claim of medical malpractice. In other words, the question is not simply whether “time lost is brain lost.” Rather, the specific facts and circumstances of this case play a significant role in determining whether the alleged negligent conduct was a substantial factor in [the plaintiff’s] injuries, and to what extent … Despite public perception about timely intervention, the average layperson cannot properly weigh such complex medical evidence without the aid of expert opinion. We therefore conclude that expert testimony is necessary to show that [the defendants’] alleged breach of the standard of care was a substantial factor in causing any harm to [the plaintiff].”

Shackleford v. Lewis, 2018-SC-000276-DG.

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