Kentucky Court of Appeals holds no medical testimony necessary to prove negligence where doctors attempt removal of missing organ.

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.  In the Kentucky case of Matheney v Sharpe, M.D. 2006 WL 1962303, (2006), 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.  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, in its opinion stated,

Indeed 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.

This is the legal equivalence of leaving a scalpel or other foreign object in the body during surgery or as Thoreau used to say, “a trout in the milk.”