Ky. SC: Med-mal plaintiffs better bring experts

John O'Brien Feb. 5, 2010, 12:43pm


FRANKFORT, Ky. (Legal Newsline) - A Kentucky judge was right to rule against a plaintiff who had not retained an expert witness for his 17-month-old medical malpractice lawsuit, the state Supreme Court recently ruled.

Horace Collier alleged that Dr. Robert Blankenship and Caritas Medical Center were negligent in delaying treatment for his abdominal pain in 2004. Collier said he was ignored for several hours and eventually underwent an appendectomy.

The trial court granted the defendants summary judgment four months after they asked for it, but the Court of Appeals overturned it.

"Despite Collier's argument that the summary judgments were actually a sanction for his failure to meet an expert disclosure deadline, the trial court based its grant of summary judgment on Collier's failure of proof," Justice Justice Lisabeth Hughes Abramson wrote Jan. 21.

"The trial court properly held... that without expert testimony there was no issue of material fact and, as a matter of law, Collier could not sustain his burden of proof."

Collier had asked for a 30-day extension to find an expert witness but still had not located one by the end of it.

The Supreme Court said it is undisputed that an expert witness is needed for a medical malpractice claim. The Court of Appeals said the judge should have entered a ruling saying Collier that he needed one.

"Collier contends that plaintiffs are entitled to proceed to trial, and simply reserve the right not to call an expert witness," Abramson wrote.

"Collier admits that this course of action may have resulted in a directed verdict against him, but insists that such trial strategy is within a plaintiff's right.

"Although this trial strategy may be appropriate for a plaintiff alleging an ordinary negligence claim, that is simply not the case with medical negligence cases in Kentucky."

One of the three dissents referred to the merits of Collier's case as suspect.

Justice Will Scott said he shared the majority's opinion to "terminate doubtful malpractice claims as early as practical," but said the opinion was inconsistent with earlier summary judgment rulings.

Chief Justice John Minton and Justice Daniel Venters also dissented.

Justices Will Schroder, Mary Noble and Bill Cunningham joined in the majority.

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