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Tuesday, July 23, 2019

Med-mal lawsuit can proceed; Plaintiff's attorney says no expert witness needed

By David Hutton | Jul 13, 2017

FRANKFORT, Ky. (Legal Newsline) – The Kentucky Supreme Court has ruled that a medical malpractice lawsuit can move forward, siding with an appeals court’s decision that a trial court judge erred when he dismissed the case for lack of an expert witness.

The appeals courts' decisions reversed a directed verdict in the suit filed by Jacqulyn G. Harrington against Dr. Alex Argotte.

The Supreme Court's June 15 opinion states that Argotte performed two surgical procedures for Harrington, including the placement of an inferior vena cava filter (IVC filter) and a subsequent gastric bypass surgery. The IVC filter is purported to have eventually fractured, and pieces moved into Harrington’s lungs.

Harrington testified that Argotte never personally advised her of any risks associated with the IVC filter or the process of implanting it. She testified that she signed papers without fully understanding the risks because she felt rushed by Argotte’s staff.

However, the suit states Harrington did know that "migration of filter" was a risk, but she was not told that the filter could fracture and that fragments of the filter could break loose and travel through her veins to affect vital organs.

In an opening statement, Harrington’s attorney told the court and jury that she would not present an expert witness because “you can use your own common sense” to determine if Harrington had been informed of the risks associated with the procedure.

At the close of Harrington's opening statement, Argotte moved for a directed verdict, arguing that without an expert witness, Harrington was unable to prove a breach of the standard of care regarding informed consent.

After concluding that Harrington could not prevail without the opinion of a testifying expert, the trial court dismissed Harrington's claim before the first witness was called.

The Court of Appeals reversed the decision, concluding that the trial court too hastily dismissed the case since the evidence to be presented at trial may have established an exception to the general rule requiring expert testimony to establish a professional standard of care. Argotte appealed that decision.

The Court of Appeals released its opinion in the case a month prior to the Kentucky Supreme Court’s opinion in Sargent v. Shaffer, which delved into Kentucky's statutory standard for informed consent.

In its opinion, the court noted that under Kentucky law, a physician obtains a patient’s consent to perform a medical procedure when two elements of the standard are met, including that the action is in keeping with the accepted standard of medical practice among members of the profession with similar training and experience and that a reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and any risks.

Applying its decision in Sargent, the state Supreme Court noted that a physician must comply with both subsections of the law.

Argotte provided the expertise required to show what risks associated with the IVC filter should be included in the notice to the patient. In a pre-trial deposition which would be available as evidence at trial, Argotte testified that the risks associated with an IVC filter included the risk that it could “fracture and migrate.” 

As a result, the only issue remaining was the question of whether information he provided about those risks, “migration of filter,” would provide “a reasonable individual” with “a general understanding” of the risk that the filter could break into fragments, which could then migrate to other parts of the body, the opinion stated. 

“That factual question is one that could readily be resolved by reasonable jurors without the assistance of expert testimony,” the court wrote in its opinion.

As a result, the court noted that Harrington's admission that she would not call an expert to testify was not fatal to her claim and thus was not a proper basis for entry of a directed verdict. 

The Kentucky Supreme Court remanded the case back to the McCracken Circuit Court for further proceedings.

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