In an unpublished opinion rendered on March 29, 2019, the Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held that the Kentucky medical malpractice plaintiff had “failed to present any affirmative evidence that [the defendant hospital] breached the standard of care. Because no genuine issues of material fact existed, [the defendant hospital] was entitled to judgment as a matter of law.”
The Underlying Facts
The Kentucky medical malpractice plaintiff gave birth to twins by C-section delivery at the defendant hospital on June 27, 2011. The delivering surgeon inspected the surgical wound and confirmed by count that all sponges and instruments used during the procedure had been removed from the plaintiff’s abdomen.
The plaintiff began to experience some complications, including abdominal pain, and was referred to a general surgeon whom she saw on September 19, 2011. The general surgeon believed that the plaintiff’s pain was due to an abdominal mass and possible gall stones. The plaintiff had surgery on October 6, 2011 to remove her gall bladder and the abdominal mass. One of the surgeons noted in his post-operative report that he excised “firm necrotic fat . . . out of healthy-appearing tissues” and that he discovered “a mesh like plastic at the base [of the anterior fascia], which was removed as a strip.” He also stated that “[t]his was all sent for permanent pathological analysis.”
However, the mesh-like plastic strip was never sent to pathology and evidently was discarded following surgery. No explanation has been given by any party, witness, or other person as to what happened to the material. The surgeon did not photograph the material and is the only person known to the parties who has seen the object that was removed from the plaintiff’s abdomen.
On September 12, 2012, the plaintiff filed her Kentucky medical malpractice lawsuit alleging that the defendant hospital was negligent in failing to prevent and later discover, diagnose, and remove the foreign object found inside her abdomen. The plaintiff contended that the foreign object was left during the C-section procedure, which the defendant hospital denied.
The defendant hospital filed its motion for summary judgment, arguing that the plaintiff failed to establish that it breached the applicable standard of care and caused the plaintiff’s alleged injuries. The plaintiff responded that a jury could infer the negligence of the defendant hospital, through its agents or employees, during the C-section procedure because a foreign object was subsequently removed from the plaintiff’s abdomen.
The trial court granted the defendant hospital’s motion for summary judgment, finding that the plaintiff was not not entitled to rely on the doctrine of res ipsa loquitur for an inference of negligence, concluding that the plaintiff failed to present evidence that the defendant hospital violated the standard of care. The plaintiff filed an appeal.
Res Ipsa Loquitur
The Kentucky Appellate Court stated that under Kentucky law, a plaintiff alleging medical malpractice is generally required to put forth expert testimony to show that the defendant medical provider failed to conform to the standard of care. Expert testimony is not required, however, in res ipsa loquitur cases, where the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it. The res ipsa loquitur exception to the expert testimony requirement may be applied in situations where any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care.
The Kentucky Appellate Court stated that the plaintiff’s medical history included laparoscopic procedures in 1993 and 1996 to treat endometriosis, as well as a laparoscopic appendectomy in 1996. Between 2001 and 2010, the plaintiff underwent three dilation and curettage procedures to treat ongoing problems with her uterine lining.
The Kentucky Appellate Court stated that the identity of the plaintiff’s “mesh like plastic” was never conclusively established, and her expert witnesses were only able to speculate as to what the item could have been and how it came to be in the plaintiff’s abdomen. Further, the plaintiff failed to cite any evidence in the record where the prior procedures were addressed and/or ruled out as a possible source of the mesh like plastic. The Kentucky Appellate Court held: “With more than one potential source of the foreign material, a layperson would not be able to exclude [the plaintiff’s] prior surgeries without expert evidence … Here, … [the plaintiff] … failed to establish [the defendant hospital] had full control of the “mesh like plastic” material that allegedly injured [the plaintiff]. The trial court did not err by finding res ipsa loquitur did not apply to [the plaintiff’s] claim.”
Bowling v. Baptist Healthcare System, Inc., No. 2017-CA-001833-MR.
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