NOTE: THE FOLLOWING KENTUCKY COURT OF APPEALS CASE WAS REVERSED BY THE KENTUCKY SUPREME COURT ON AUGUST 29, 2019
In its unpublished opinion filed on July 21, 2017, the Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held that given the ubiquity of information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 so that the common knowledge exception to the requirement for expert testimony regarding causation in medical malpractice cases applies to the facts of the Kentucky medical malpractice case it was deciding.
The Underlying Facts
The plaintiff was referred to an interventional radiologist for a cerebral angiogram to confirm the diagnosis of systemic vasculitis. Before the angiogram procedure on December 20, 2010, the plaintiff was informed that strokes were a known risk of this type of procedure. The plaintiff nonetheless gave his consent for the cerebral angiogram. As a precaution, the plaintiff was given Heparin before the procedure.
The cerebral angiogram proceeded without complication. Before the plaintiff was transferred to the recovery room for observation, the interventional radiologist examined the plaintiff and found him to be conversational and without apparent ill effects from the procedure.
While the plaintiff was in the recovery room, he advised the nurses that he had white spots in his field of vision. After the white spots subsided in approximately thirty minutes, the plaintiff had a headache. The nurses gave the plaintiff pain medication and assured him that his symptoms were common effects following a cerebral angiogram. The plaintiff was kept in the recovery room for approximately eight hours despite the typical monitoring period of four hours after a cerebral angiogram. The plaintiff was then discharged to home.
When the plaintiff was getting into his car to go home, he experienced signs of disorientation (he attempted to climb into a child’s car seat rather than the front passenger seat). The plaintiff’s confusion worsened at home (he attempted to go out into the snow while not wearing a shirt).
When the plaintiff returned to the hospital the following morning, a CT scan was read as normal but an MRI showed signs of multiple areas of infarct that were indicative that the plaintiff had suffered a stroke. Expert testimony indicated that the plaintiff’s brain had “aged” by over forty years in the approximately twelve hours between the plaintiff’s discharge from the hospital following the cerebral angiogram and when he returned to the hospital the following morning.
The plaintiff subsequently filed his Kentucky medical malpractice lawsuit. The defendants moved for summary judgment, arguing that the plaintiff’s vascular surgeon expert testified in his deposition that it was impossible to tell if the damage to the plaintiff’s brain would have been any different had he been hospitalized versus going home. The trial court subsequently granted the defendants’ motion for summary judgment, and the plaintiff appealed.
The Kentucky Appellate Court stated that the issue was whether the plaintiff produced sufficient proof that the defendant interventional radiologist’s actions caused the plaintiff’s injury. The Kentucky Appellate Court held that the issue of causation in this case fell into one of the two categories not requiring expert medical testimony, and therefore reversed the summary judgment granted to the defendants and remanded the case for further proceedings.
Shackelford v. Lewis, No. 2015-CA-001750-MR
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