Dispensing with expert testimony

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].