Common knowledge rule for applying res Ipsa.

CASE ON POINT: Perkins v. Susan B. Allen Hospital, No. 99,572 (12/01/2006) P.2d -KS

ISSUE: There is a difference between medical malpractice and ordinary negligence. This Kansas case illustrates that the same circumstances, which cause injury to a hospital patient may have characteristics

CASE FACTS: On February 20, 2003, Mary Perkins went to Susan B. Allen Memorial Hospital for a scheduled radiology examination of her lower digestive system. Richard Kerwood began the examination, which involved a series of x-ray fills taken 14 to 20 minutes apart. Shortly after the examination had begun, the patient complained her back hurt from lying on the examination table. Consequently, Kerwood agreed to allow the patient to remove herself from the table between exposures to allow her to rest in a chair located in the examination room. Throughout the procedure, Kerwood left the examination table at its lowest position, and the patient could easily touch the floor when she was seated at the edge of the table. The patient had x-rays taken at the hospital on previous occasions and had always gotten down from the examination table without assistance. In fact, the patient had previously undergone tests similar to the tests administered on the date in question. Before the examination had been completed, Kerwood took a break and was replaced by Brandy Book. Kerwood did not communicate with Book about his leaving the table in the lowest position or that the patient was sitting in the chair between films. When another film was to be taken, Book positioned the patient on the x-ray table and raised the table. Book left the room to develop the x-ray film and left the patient on the raised table. Book did not inform the patient that she raised the table. Book maintained that she told the patient to "remain on the table" until she returned. The patient did not "recall" Book telling her to remain on the table. After Book left the room, the patient sat up momentarily on the edge of the table. Then, she attempted to leave the table, fell to the floor, and fractured her hip. The patient sued the hospital alleging that it failed to use reasonable care to ensure her safety and deviated from accepted standards of practice in her treatment. The hospital, arguing that the patient's claims should be characterized as premises liability claims, moved for summary judgment. The Butler District Court granted the defendant's motion for summary judgment. The patient appealed.

COURT'S OPINION: The Court of Appeals of Kansas held that the lower court properly classified the patient's negligence claim based upon the technicians' failure to communicate with each other as well as the patient as medical malpractice requiring expert medical testimony. In contrast, the court held that the lower court erred in classifying the patient's claim involving "failure to warn" as a medical malpractice claim requiring expert testimony. Accordingly, the court concluded that the summary judgment on the "failure to warn" claim was improper. The court affirmed the judgment of the lower court in part, affirmed it in part, and remanded the case back to the lower court for further proceedings

LEGAL COMMENTARY: Although the patient identified four acts of negligence which allegedly contributed to her injury, she generally asserted two legal claims: (1) the hospital's employees, Kerwood and Book, negligently failed to establish and implement a consistent routine; and (2) Book negligently failed to warn her of the danger created by the raised x-ray table. The court rejected the patient's contention that both claims were well within the common knowledge of the average juror, thus, obviating the need for expert medical testimony, which is required in virtually all medical malpractice cases. The court recognized the common knowledge exception. The court rejected the patient's contention that the lower court confused the principle of RIL with the common knowledge exception. The court ruled that the issue involved a question of law, over which the court possessed unlimited power of review. The court concluded that the lower court's articulation of the common knowledge exception was correct. Though variously stated, the common knowledge exception to the expert testimony requirement has three essential elements: (1) the plaintiff has asserted a claim of medical malpractice; (2) the care or result of the care is patently bad; and (3) a person without the pertinent medical knowledge can assess the wrongfulness of the diagnosis, treatment, or care and attribute the plaintiff's injury to the wrongful conduct without the assistance of expert testimony. As a result, the exception is extremely limited. However, the court concluded that because the exception is not applicable did not mean the claim was invalid Accordingly, the court concluded that the patient may have had a bona fide claim for ordinary negligence.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in american Law, Who's Who in America and Who's Who in the World.