CAMLAW: Complementary and Alternative Medicine Law Blog

Medical expert testimony not always necessary to show negligence

The Health Care Law Blog brings news of a new Kentucky case, reiterating the legal principle that medical expert testimony is not always necessary to show negligence (medical malpractice).

Health care attorney Greg Piche of the Health Care Law Blog notes that: "Generally a plaintiff in a medical malpractice case must provide medical testimony to establish negligence by a physician. The reason is that the courts view the intricacies of medicine as being outside the knowledge and understanding of lay persons and therefore require medical testimony to assist a jury before it can render a verdict in a professional malpractice case. Obtaining medical testimony is frequently a difficult task for a plaintiff because of the reluctance of physicians to testify against each other."

He then discusses the ew case of Matheney v Sharpe, M.D. 2006 WL 1962303, (2006), in which "the Kentucky Court of Appeals reversed a trial court that had dismissed Ms. Matheney case on summary judgment because of her failure to provide expert medical testimony supporting her claim. Her treating physician and surgeon filed affidavits that they had performed their duties within the standard of care in the community. It the absence of a countervailing affidavit by a physician establishing a breach of the standard of care, the court dismissed her case.

The Court of Appeals reversed the case holding that in the curious circumstances of this particular case, a lay jury could reasonably conclude that there was a breach of the standard of care even absent the presentation of supporting medical testimony."

The facts are follows:

"On or about March 25, 2003, Ms Matheney reported to the emergency room at Jewish Hospital in Shelbyville, Kentucky. Her chief complaint was stomach cramps. The emergency room physician performed an ultrasound test on her and determined the presence of gallstones in her gallbladder. The problem - she had no gallbladder. It had been previously removed - by Dr. Sharpe." The court stated that "a layperson would have no difficulty in recognizing Dr. Sharps' purported deviation from the standard of care of advising and undertaking to remove a gallbladder that he had previously removed. Moreover we, likewise, believe that a layperson would have no difficulty recognizing Dr. Schwab's purported deviation from the standard of care in reading Matheney's ultrasound as a diseased gallbladder, when, in fact, no gallbladder existed."

The legal rule for medical malpractice in this case resembles that of res ipsa loquitor - literally, 'the thing speaks for itself.'

A thought experiment we could perform is to ask whether the same rule could apply if a physician is grossly and obviously negligent in offering the patient a CAM therapy that lacks evidence of safety and efficacy, or has clear evidence of danger or ineffectiveness.
Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploration of legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion. This is the fourth book in a series, following Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen has also been admitted to the Bar of England and Wales as a Solicitor (non-practicing), adding to Bar membership in four U.S. states.

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