Causes of Action: Negligence

COA 7/8/2011

STUMBO, JUDGE: Beth A. Thompson (“Ms. Thompson”) appeals from an order of the Boyd Circuit Court granting summary judgment in favor of Ashland Hospital Corporation d/b/a/ King’s Daughters Medical Center (“KDMC”). Ms. Thompson sued KDMC after her father fell off a table and was injured as he was about to receive an x-ray. Thompson contends that the trial court erred in concluding that her failure to provide expert testimony on the issues of standard of care and causation was fatal to her claim. We conclude that because Ms. Thompson is prosecuting a claim of ordinary negligence rather than complex medical negligence, the trial court erred in determining that expert testimony was required to instruct the jury on KDMC’s standard of care and its alleged breach of that standard. Accordingly, we reverse the summary judgment on appeal and remand the matter for further proceedings.

In order to prevail in a negligence action in Kentucky, a plaintiff must offer proof that the defendant owed the plaintiff a duty of care, which the defendant breached that duty, and that injury proximately resulted from the breach.

Pathways, Inc. v. Hammons, 113 S.W. 3d 85 (Ky. 2003). In a medical negligence action, the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner, and that the negligence proximately caused injury or death. Reams v. Stutler, 642 S.W. 2d 586 (Ky. 1982). As a rule, the complexity of medical procedures requires a medical negligence plaintiff to rely on expert testimony rather than lay testimony to establish duty, breach, causation and injury. Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010). Conversely, ordinary or simple negligence actions do not require expert testimony. Id. The test for distinguishing between medical negligence and ordinary or simple negligence is “. . . whether the case involves a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person or is one where the common everyday experiences of the trier of the
facts . . . are sufficient in order to reach the proper conclusion. In the former, expert opinion testimony is ordinarily required to aid the trier of the facts; in the latter it is unnecessary.” Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006), quoting Twitchell v. MacKay, 78 A.D.2d 125, 127-128 (N.Y.A.D.1980).
The question for our consideration, then, is whether the facts surrounding Mr. Thompson’s fall involve a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person, or conversely whether the common everyday experiences of a jury are sufficient in order to reach the proper conclusion. Andrew, supra. Having closely considered the entire record, we cannot conclude that an average person would be unable to
discern without the benefit of expert testimony why Mr. Thompson fell off the table, nor why the fall allegedly resulted in injury. The facts of this action are more akin to a routine “slip and fall” negligence action than a medical malpractice action involving complex and sophisticated medical procedures which are outside the knowledge or skill ordinarily possessed by the average person. That is to say, whereas an average person will not possess the knowledge or skill required to consider the complexities of sophisticated medical procedures, such a person’s “common everyday experiences” will allow him or her to determine why an allegedly sick, semi-comatose individual fell off a table. Additionally, Ms. Thompson, through counsel, repeatedly alleged in her complaint that KDMC engaged in ordinary negligence rather than medical negligence. While her usage of this language is by no means controlling, it does bolster her assertion that the instant action has from the outset been about KDMC’s alleged ordinary negligence rather than medical negligence. Finally, we cannot conclude that every alleged act of negligence occurring in a hospital setting must be characterized as medical negligence. The determination of whether the alleged negligence is ordinary negligence or medical negligence is fact-based, and the facts now before us do not compel us to conclude that the trier of fact would be unable to reach a proper conclusion absent hearing expert testimony.

When viewing the record in a light most favorable to Ms. Thompson and resolving all doubts in her favor, we cannot conclude that it appears impossible for Ms. Thompson to prevail at trial. The fact that Ms. Thompson’s counsel inexplicably failed to meet two discovery deadlines or file a responsive pleading to KDMC’s motion for summary judgment does not alter this conclusion. Ultimately, the dispositive questions are whether the trier of fact would be unable to consider the issues presented without the benefit of expert testimony, and whether it appears impossible that Ms. Thompson could prevail at trial absent such testimony. We must answer these questions in the negative, and accordingly conclude that summary judgment was not warranted.

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