Kentucky Supreme Court reemphasizes the requirement of expert testimony on causation in medical malpractice cases; res ipsa doesn’t apply to causation unless it also applies to negligence.

The case is Ashland Hospital Corp. v. Lewis, (8/29/2019).  The defendant, an interventional radiologist, performed a cerebral angiogram to assist in diagnosing the cause of the plaintiff’s chronic headaches.  A recovery room nurse told the defendant that the plaintiff was complaining of headache and scotoma (spots in his field of vision).  These symptoms may indicate a stroke, but they also are not uncommon after a cerebral angiogram. The defendant, who was performing another procedure, told the nurse to notify him of any changes.  After a few hours, the scotoma resolved but the headache persisted.  Per the nurse’s report to the defendant, the plaintiff had no other visual changes, weakness, slurred speech, or facial palsy.  The defendant prescribed pain medication for the headache (which he presumed had been triggered by the angiogram) and discharged the plaintiff without examining him personally.

The next morning, the plaintiff became disoriented at home and was returned to the hospital via ambulance.  An MRI showed multiple small infarcts scattered bilaterally – i.e., signs of a recent stroke.  He was admitted, treated, and released two days later.  In his medical malpractice complaint, the plaintiff alleged that he had continuing short term memory loss and visual problems; that the defendant was negligent in failing to examine the plaintiff and diagnose the stroke; and that earlier treatment of the stroke would have resulted in a better outcome.

At deposition, the plaintiff’s expert witness, a vascular surgeon, criticized the defendant’s failure to examine the plaintiff personally in light of symptoms consistent with a stroke, but he did not opine that earlier intervention would have made a difference.  To the contrary, when asked specifically whether the defendant’s post-procedure care was a substantial factor in causing harm, the plaintiff’s expert replied that it was “impossible to tell.”  The depositions of the defendant’s expert witnesses also provided no support for the plaintiff’s theory of causation, though they both agreed with the general proposition that strokes require timely intervention and that “time lost is brain lost.”  One of the defense experts, when asked whether the plaintiff’s discharge from the hospital caused damage if he was released while suffering a stroke, replied, “I don’t know that you can say from the time after he was released to the time he came back that any difference would have been made.  The damage could have been done and there may have been no treatment for it.”  The other defense expert simply didn’t testify on causation.  (My guess is that plaintiff’s counsel, having learned the useless of that line of inquiry during the first deposition, chose not to pursue it at the second deposition.)

On this record, the trial court granted the defendant’s motion for summary judgment.  The intermediate court of appeals reversed, finding that in this case the issue of causation did not require expert medical testimony:  “Given the ubiquity of information regarding stroke symptom identification and the necessity of prompt treatment, it has become common knowledge that ‘time lost is brain lost’ as to timely medical intervention.”  In other words, the doctrine of res ipsa loquitur applied here, and a lay jury with this general knowledge could resolve the causation issue without the aid of medical expert testimony. 

The Kentucky Supreme Court reversed the court of appeals’ decision and reinstated the summary judgment order.  The court explained that res ipsa applies, and expert testimony is unnecessary, only when “the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relationship to it.” (Emphasis added; internal quotation marks omitted.)  The court gave the following examples of Kentucky cases in which the application of res ipsa was approved: 

  • A dentist’s drill slipped and punctured the patient’s tongue.
  • A surgical hook was left inside a patient.
  • A bone was broken during physical therapy.
  • Extensive bleeding occurred after catheterization procedure.

The court concluded its analysis as follows:

Although public service campaigns have increased public awareness and knowledge about stroke symptoms and timely intervention, that general information cannot provide the medical expertise necessary to evaluate this particular claim of medical malpractice….[T]he specific facts and circumstances of this case play a significant role in determining whether the alleged negligent conduct was a substantial factor in [the plaintiff’s] injuries….including [his] medical history and history of cluster headaches; the common side effects of the angiogram procedure, including headache and scotoma; and the manner in which [his] headache and scotoma presented, as well as their timing.  [These factors] may have also influenced the severity of the injury….[T]he average layperson cannot properly weigh such complex medical evidence without the aid of expert opinion.  We therefore conclude that expert testimony is necessary to show that [the defendant’s] alleged breach of the standard of care was a substantial factor in causing any harm to [the plaintiff].  To conclude otherwise is to drastically expand the res ipsa loquitur exception and to virtually eliminate the need for expert opinion evidence in similar medical malpractice actions that involve common or highly publicized conditions (e.g., stroke, heart attack, and even some cancers).

My own view, based on 15 years’ experience litigating medical malpractice cases, is that relying on res ipsa is always risky and should be avoided unless there is absolutely no alternative.  If you have a case in which think you might have to proceed on res ipsa alone because you can’t find a medical expert, Vident Partners is ready to assist you.  


2020 © Vident Partners.