In January 2022, Colleen Reilly underwent spinal surgery while in the care of Dr. Farbod Rastegar, an orthopedic spine surgeon at Atrium Medical Center. Reilly’s surgical procedure was an anterior cervical discectomy and fusion (“ACDF”), which involved the placement of a cervical interbody implant into her cervical spine using a device known as an “inserter.” Inserters come with or without a small flange, commonly known as a “depth stop,” and the depth stop serves as a tool to prevent the surgeon from inserting the implant too deeply into a patient’s spinal canal.
Dr. Rastegar preferred to use, and always had used, an inserter with a depth stop when performing ACDF cases. During Reilly’s surgical case, however, Darcie McIntyre, a surgical scrub technician at Atrium, handed Dr. Rastegar an inserter without a depth stop, and Dr. Rastegar inserted the implant too deeply, which resulted in Reilly’s spinal cord injury. At the time of Reilly’s injury, Dr. Rastegar was unable to see that he was using an inserter without a depth stop due to the magnification of his visual field, which was necessary to perform the procedure.
Reilly remained in Dr. Rastegar’s care for about a year after her injury, during which Dr. Rastegar performed a subsequent surgery to try to correct the initial injury. In May 2023, Reilly filed a complaint for medical negligence against Dr. Rastegar and several of Atrium’s employees, including McIntyre, alleging that Atrium was vicariously liable for McIntyre’s negligent conduct in handing Dr. Rastegar an inserter without a depth stop, which resulted in her injury.
Dr. Rastegar testified during his deposition that he had never used an inserter without a depth stop during ACDF cases and that he had communicated his instrument preference (i.e., an inserter with a depth stop) to “everyone,” including hospital staff, like McIntyre, and leadership.
Atrium moved for summary judgment based on Reilly’s failure to produce an expert report setting forth evidence regarding McIntyre’s negligence. In ruling on Atrium’s summary judgment motion, the trial court determined that
expert testimony was necessary to establish that McIntyre had acted negligently by handing Dr. Rastegar an inserter without a depth stop. The court essentially found that even if Dr. Rastegar’s deposition testimony had implicated the hospital’s staff, including McIntyre, as contributors to Reilly’s injury, Atrium satisfied its summary judgment burden because there was no expert testimony alleging a departure from the standard of care by Atrium’s staff members or that such alleged negligence was a proximate cause of Reilly’s injury.
The trial court acknowledged, however, that there was evidence that Dr. Rastegar had ordered McIntyre not to place inserters without depth stops on his surgical trays and that McInture failed to follow that order, ultimately handing Dr. Rastegar such an inserter during Reilly’s surgery. The trial court emphasized that expert testimony was necessary to establish that McIntyre acted negligently, as Reilly’s claim was for medical negligence and thus required expert testimony regarding the standard of care and proximate cause. The trial court further reasoned that the “common knowledge” exception to the general rule—that expert testimony is necessary in actions involving the negligence of a medical professional—did not apply.
The Court of Appeals of Ohio Second Appellate District Montgomery County stated in its January 23, 2026 Opinion: “[T]he burden of proof is on the non-moving party to establish that there is no genuine issue of material fact. In this case, it is undisputed that McIntyre handed Dr. Rastegar the wrong inserter without a depth stop despite Dr. Rastegar’s
contrary orders. It is also undisputed that Reilly’s injury occurred when Dr. Rastegar used that inserter and installed the implant too deeply into Reilly’s surgical canal. The trial court even determined that Dr. Rastegar had ordered McIntyre not to place inserters without depth stops on his surgical trays and that McInture failed to follow that order by handing Dr. Rastegar such an inserter during Reilly’s surgery. Because a hospital may be held vicariously liable for the failure of its employees to follow a physician’s orders, as the record shows in this case, we conclude that the trial court erred in finding that Atrium had met its initial burden of proof establishing no genuine issue of material fact concerning McIntyre’s negligence and Atrium’s respondeat superior liability. Accordingly, because Atrium had not satisfied its initial burden, the reciprocal burden never shifted to Reilly to set forth specific facts showing a genuine issue for trial. Under these circumstances and based on the evidentiary materials already submitted (e.g., Dr. Rastegar’s testimony), Reilly was not required to provide her own expert testimony or to otherwise demonstrate an issue for trial.”
Common Knowledge Exception
Under the common knowledge exception, matters of common knowledge and experience, subjects which are within the ordinary, common and general knowledge and experience of mankind, need not be established by expert opinion
testimony. The Ohio appellate court stated: “In the case before us, even if the burden of proof had shifted to Reilly, we do not believe that additional expert testimony was necessary to create a genuine issue of material fact precluding summary judgment. We recognize that it is well settled that expert testimony is necessary to establish the prevailing standard of care where the professional skills and judgment of a nurse, for example, are alleged to be deficient … while there is no bright-line rule, when a surgeon gives an order that is not followed by a surgical scrub technician, expert testimony may not be required to prove the technician’s conduct was negligent.”
“The evidence in this case is clear that Dr. Rastegar gave explicit orders regarding the instruments required for him to safely perform Reilly’s case, and there is evidence that this order was not followed. Accordingly, expert testimony outside of Dr. Rastegar’s own testimony with respect to the instrument instructions given to McIntyre was not required to show that McIntyre may have been negligent in failing to follow Dr. Rastegar’s orders … under the particular circumstances of this case, the testimony of Dr. Rastegar regarding McIntyre’s failure to follow his orders and Reilly’s subsequent injury from an improper inserter was sufficient to create a genuine issue of material fact in this matter and that additional expert testimony beyond that of Dr. Rastegar was not necessary.”
Source Reilly v. Rastegar, 2026-Ohio-208.
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