Medical malpractice case gets dismissed after dilatory Plaintiff fails to hire expert witness.
New technology in the operating room can be a good thing, if used properly. One Plaintiff from Daviess County, Kentucky found that a surgical procedure performed with the help of a "robotically-assisted da Vinci surgical system" caused her serious injuries which resulted in additional, remedial surgeries. Ashley Brown brought a personal injury lawsuit against The Woman's Pavilion, P.S.C and her surgeon following her problematic laparoscopic hysterectomy. The Court of Appeals provides the following information about the procedure and her injuries:
"The operative/procedure note dictated by Dr. Griffin indicated an inspection of the pelvis was undertaken, the course of both ureters was identified, all structures were freed up and removed, and the procedure was concluded without any noted complications. However, during the procedure Brown sustained an accidental and unnoticed injury to her right distal ureter. The injury manifested itself several days later and the resulting complications required multiple additional surgical interventions to correct."
Plaintiff's suit alleged that her surgeon, "Dr. Griffin failed to exercise appropriate care, negligently caused [her] injury, and compounded the injury by negligently and unreasonably failing to identify the injury before concluding the initial surgical procedure." So what was the outcome of her lawsuit? Plaintiff never got her day in court because her attorney failed to identify a medical expert witness as required by the Court. Her case was dismissed by the trial court.
The Court of Appeals decision, rendered this past November, ruled that the trial court was correct in granting summary judgment for the defense as a result of Plaintiff's omission. The Court determined that Plaintiff's failure to name an expert, who could offer evidence regarding the appropriate standard of care, was fatal to her case. Ms. Brown would have proved her damages easily, but she lacked proof regarding the "standard of care" and therefore she could not subsequently prove a breach of that standard by her surgeon.
Unless the surgeon cuts off the wrong leg or leaves some equipment inside a body, a medical malpractice claimant will always need an expert to prove the appropriate standard of medical care.
