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Medical Malpractice and Common Sense

Medical Malpractice and Common Sense

Generally, with medical malpractice cases, there must be expert testimony provided to prove malpractice occurred. There are also jury instructions stating that a jury may only rely on the expert testimony when determining whether malpractice occurred. A recent Indiana Court of Appeals case, however, highlighted where common sense may be used in a medical malpractice case.

Common Sense vs Medical Malpractice

In Thomson v. St. Joseph Regional Medical Center and Michael Borkowski, M.D., while the Plaintiff was undergoing a hysterectomy, the arm board connected to the surgery table became detached and left her arm dangling to the side. After surgery, Ms. Thomson had right arm pain and was later diagnosed with a right radial nerve injury, probably caused by compression. Ms. Thomson’s claim was first heard by a medical review panel pursuant to Indiana Code Section 34-18-8-4. The panel found there was no negligence. At this point, Ms. Thomson filed her case in state court and had to rebut the panel’s opinion on summary judgment.

Summary judgment was granted in favor of the hospital and anesthesiologist; however, the Indiana Court of Appeals reversed the decision using the res ipsa loquitur or “common knowledge” exception. This exception is used when the Plaintiff can show “(1) the injuring instrumentality is under the management or exclusive control of the defendant or his servants and (2) the accident is such as in the ordinary course of things does not happen if those who have management of the injuring instrumentality use proper care.” The Court noted the anesthesiologist did not have to have exclusive control of the arm board to be subject to the common knowledge exception.

In overturning the summary judgment ruling the Court of Appeals noted “it suffices to say that common sense and experience lead us to conclude that an arm board should not become detached leaving a patient’s arm dangling for such a period of time that the patient suffers nerve injury.” Even though medical malpractice cases do require expert testimony, this case highlights where common sense may enter into these complex cases.
If you or a loved one have experienced medical malpractice or if something went wrong during surgery, there is a birth injury, or a failure to diagnose, the personal injury attorneys at Goodin Abernathy, LLP are waiting to speak with you. Call us for a free consultation of your case.

Image by FreeDigitalPhotos.net and David Castillo Dominici