Legal Pearls: Public Knowledge Does Not Equal Medical Expert Testimony

This month we look at a case where the Supreme Court of Kentucky rejected the use of “common knowledge” in lieu of medical expert testimony to establish causation in a medical malpractice case.

Clinical Scenerio

The patient had a history of chronic headaches and was referred to an interventional radiologist for a 4-vessel cerebral angiogram to help determine the cause. The procedure went normally with no complications. The doctor performed a post-procedure assessment and did not note any concerns or issues. Rather, his notes indicated that the patient was “normal conversant, no problems, no complaints, no weakness, no visual field changes.”

Later, however, while in the recovery room, the patient told a nurse that he was having a frontal headache and spots in his field of vision. The nurse reported the symptoms to the doctor, who was performing another procedure at the time. Knowing that the symptoms could indicate a stroke but are also not uncommon after an angiogram, the doctor asked whether any other problems had arisen, such as weakness, but the nurse said no. The doctor asked the nurse to keep him informed of any changes.

After finishing with his other patient, he called to check on the patient. The doctor was told that the spots in his vision had resolved, but he still had a headache. There were no other visual changes, weakness, slurred speech, or facial palsies. Given the patient’s history of headaches, and the possibility that the angiogram had caused a migraine, the doctor prescribed pain medication.

When the nursing staff reported in later, they noted that the patient’s headache had improved. Sometime after that, hearing that the patient was feeling okay, the doctor discharged the patient. He had been monitored for close to 8 hours prior to discharge.

The next morning the patient returned to the medical center via ambulance after being disoriented at home. A CT scan was performed, the results of which appeared normal. An MRI was also performed which indicated signs of a recent stroke. He was admitted to the hospital where he was treated by a neurologist. He was discharged 2 days later. Although the patient’s condition largely improved, he continued to have short-term memory lapses and visual problems.

The Lower Court Case

The patient hired a plaintiff’s attorney and sued the doctor. He did not claim that the stroke itself was caused by the doctor's negligence, rather, he alleged that his failure to examine and diagnose the stroke after the angiogram was negligent and caused him greater injury than he would have experienced had the stroke been diagnosed earlier.

To support his argument, the patient introduced expert testimony from a vascular surgeon. The expert criticized his failure to examine the patient or order an immediate MRI when the patient exhibited symptoms consistent with a stroke. However, the expert did not say that the effects of the stroke would have been lessened had the doctor intervened earlier. When asked specifically whether he could state within a reasonable degree of medical certainty that the doctor’s post-procedure care was a substantial factor in causing harm to the patient, the expert said that it was “impossible to tell.”

Based on this testimony, the defense made a motion for summary judgment, asking the judge to dismiss the case on the basis that the expert had failed to opine that the alleged negligence caused any injury to the patient, and thus, he could not prove an essential element of his medical malpractice case – causation. The judge granted the motion and the case was dismissed.

The Patient Appeals

The patient appealed the decision, arguing that expert testimony wasn’t required to prove causation because it was common knowledge that “time lost is brain lost” regarding timely intervention in the case of strokes. A jury of laymen with this general knowledge could resolve the causation issue without any expert medical testimony, argued the plaintiff. The Court of Appeals agreed with the plaintiff that a jury would not need the guidance of an expert to understand that delayed treatment of a stroke causes harm to the stroke victim. The Court noted that both the American Heart Association and the American Stroke Association had used the term “time lost is brain lost” as public service messaging. It reversed the lower court’s decision and remanded the case back to the lower court for a trial.

The State Supreme Court Decides

Before the case could go to trial, the doctor appealed the Appellate Court’s ruling to the state Supreme Court. The Supreme Court disagreed with the Appellate Court. In the decision, the judges wrote that “although public service campaigns have increased public awareness and knowledge about stroke symptoms and timely intervention, that general information cannot provide the medical expertise necessary to evaluate this particular claim of medical malpractice. In other words, the question is not simply whether ‘time lost is brain lost.’ Rather, the specific facts and circumstances play a significant role in determining whether the alleged negligent conduct was a substantial factor in the patient’s injuries, and to what extent.”

The Court wrote that “the average layperson cannot properly weigh such complex medical evidence without the aid of expert opinion. We therefore conclude that expert testimony is necessary to show” that the doctor’s alleged breach of the standard of care was a substantial factor in causing harm to the patient.

The Supreme Court reversed the Court of Appeals and reinstated the trial court’s order to dismiss the case.

What’s the Take Home?

Expert testimony is necessary in most medical malpractice cases because a jury of lay people are unlikely to be able to understand complex medical issues without some help. There are exceptions, such as the doctrine of res ipsa loquitor (loosely translated to “the thing speaks for itself), which occurs when there is an obvious error, such as a scalpel being discovered in a patient’s abdomen after surgery. Generally, however, a medical expert is required in order to testify as to what the applicable standard of care is in the case, and to explain to the jury whether they believe that the standard of care was breached and whether the breach was the cause of the injury. Without these requisite elements of a medical malpractice case, the case will fail.