Medical expert not always a necessity
In an interesting decision, a Kentucky appeals court has reversed a ruling for summary judgment in favor of Whitney Jones, M.D. and Midwest Gastroenterology Associates’. The defendants were granted a judgment due to the fact that the plaintiff, Ms. Geralyn Gaes, did not have medical expert testimony as is generally required in medical malpractice cases. Contrary to what many legal practitioners believe is a requirement in a case such as Ms. Gaes (medical negligence), a three judge panel consisting of Judges Wine, Acree and Stumbo found that Ms. Gaes did not need expert testimony and that summary judgment was not proper.
Dr. Jones is a gastroenterologist and works for Midwest Gastroenterology Associates. On May 12, 2003, Dr. Jones performed a colonoscopy on Ms. Gaes. The colonoscopy went well and Ms.Gaes was discharged. Unfortunately, Ms. Gaes developed abdominal pain one day following her surgery; therefore she called Dr. Jones' office and spoke with Nurse Practitioner Melissa Jones. This phone call is the basis for the underlying case. Ms. Gaes' husband, who spoke directly with the nurse practitioner testified in his deposition that he was never advised to have his wife schedule an abdominal x-ray to check for internal injuries; conversely, the nurse practitioner testified that this advice was given to Mr. Gaes. Ms. Gaes eventually did have such an x-ray which showed air in her abdomen.
Dr. Jones moved for summary judgment when the plaintiff did not retain a medical expert to testify on her behalf. The defendant argued “[i]t is an accepted principle that in most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122,124 (Ky. 1991). Dr. Jones position is not unique, and is universally understood to be the proper application of the law in cases involving complex medical negligence issues. However, in Perkins v. Hausladen, 828 S.W.2d 652 (Ky.1992) an exception was carved out that the required expert testimony can “come in the form of admissions by the defendant doctor or when the circumstance is such that the experience of laymen can recognize negligence."
In the case at bar, the appellate court found that genuine issues of material fact could be present if a jury were to believe that Ms. Gaes was not advised to get an abdominal x-ray. She could then prove her case under the exception outlined in Perkins. Therefore, it would not be impossible for the plaintiff to prevail at trial (even without the benefit of medical expert testimony) and therefore summary judgment was improper in this case.
