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September 12, 2017

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Even more medical malpractice reported, this time from the Kentucky Supreme Court.

The Kentucky Supreme Court has issued a decision in  another "med-mal" case.   This time, a Plaintiff's failure to call a medical expert almost ruined her chance at even getting to trial.  

 

Plaintiff's claim of medical negligence began in McCracken County Circuit Court.  On June 15th, 2017  the Kentucky Supreme Court affirmed the Court of Appeals in Alex Argotte, M.D. vs. Jacqulyn G. Harrington.  In Plaintiff's opening statement, her attorney told the jury that he would not be calling any medical expert to testify.  Immediately thereafter the trial court dismissed the case.  Counsel for Plaintiff argued that an expert was not necessary as the jury could use their "own common sense."  The issue was whether or not Ms. Harrington had been sufficiently informed of the risk associated with her elected surgical procedure. 

Prior to "going under the knife" for gastric bypass surgery, Ms. Harrington needed an IVC filter implanted.  This is a small medical device used to protect against blood clots which can occur following surgery.  One of the warnings given to a patient, that must be in writing, is that an IVC filter can fracture or "migrate" in the bloodstream.  Unfortunately for the Plaintiff her IVC filter fractured and parts of it "migrated" into her lungs. These fragments could not be removed and remained lodged in her lungs. This resulted in constant pain and fear that the fragments would migrate further causing even more harm or death.  

 

The ultimate issue for a jury to decide was whether the written notice of "Migration of filter" was adequate and appropriate information to provide a reasonable patient with a general understanding that the device could break and travel within the body to other vital organs in the bloodstream.  

 

The Kentucky Supreme Court ultimately ruled that the trial court was indeed incorrect for its knee-jerk reaction of dismissing the case after Plaintiff's opening statement.  The 'Supremes' remanded the case back to McCracken Circuit Court to be tried.  Although, they decided it is possible the Plaintiff could prove her case without an expert, I would say it is highly unlikely she will show up for trial without a medical expert this time around.  

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