The vast majority of Florida medical malpractice cases require early investment in an expert witness who can substantiate assertions that the defendant health care provider breached the acceptable standard of care for his or her field of practice.
Expert witnesses can be expensive and difficult to secure and the process can be time-consuming. However, it’s necessary because the entire case will be scrapped by the judge before it even reaches the trial phase, unless you can show evidence the defendant breached the standard of care, as confirmed by someone with expertise matching the defendant’s.
However, our Cape Coral medical malpractice attorneys know there is one important exception. That’s when a case of medical malpractice involves negligent acts that lie within the realm of common knowledge and experience.
One example of this might be a medication error, wherein a patient was given the wrong drug and suffered adverse consequences as a result. Another example might be if a person was slated to have their left kidney removed, and the surgeon instead took out the one on the right. These would be incidents where no special medical knowledge would be necessary to understand why the physician’s actions were negligent.
A recent example of common knowledge exception was heard by the South Carolina Supreme Court. In Brouwer v. Sisters of Charity Providence, the primary issue before the court was whether the medical malpractice claim should be dismissed for failure to file an expert witness affidavit along with her Notice of Intent to File Suit, pursuant to state evidence rules in medical malpractice cases.
However, the reason she didn’t attach the affidavit was because, she argued, an expert witness wasn’t required to establish her claim, as it was within the ambit of common knowledge and experience. The state supreme court ultimately agreed.
The patient in this case was at the hospital to undergo a surgical procedure for treatment of her sleep apnea. During the surgery, the woman suffered a severe allergic reaction, requiring her to receive treatment in the Intensive Care Unit. Her recovery time was substantially increased, and she suffered several ill effects as a result.
The allergic reaction, the plaintiff asserted, was due to her exposure to latex by medical personnel performing the procedure. This was despite several disclosures made by the patient regarding the allergy. She noted it in her pre-anesthesia evaluation, as well as in her consent to anesthetic and medical services form. She had also informed her doctor and, prior to the procedure, was given a wrist band that warned of her latex allergy.
Medical staffers wore latex gloves anyway.
When defendants moved for summary judgment because of a lack of an expert witness, plaintiff responded that it was her good faith belief that her allergic reaction to latex was within the realm of common knowledge and experience, and didn’t require an expert witness.
The state supreme court found no special learning was necessary to evaluate the conduct of the defendant. Exposure of a patient to latex when that patient has a known allergy to that substance, thus resulting in an allergic reaction, is a scenario that meets the common knowledge standard.
Determination of whether your case will require a pre-litigation expert witness will require careful analysis by your attorney.
If you have been a victim of medical malpractice in Cape Coral, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Brouwer v. Sisters of Charity Providence, Aug. 6, 2014, South Carolina Supreme Court
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C-Section Debate Rages in South Florida, Aug. 5, 2014, Cape Coral Medical Malpractice Lawyer Blog