Need for experts in medical malpractice: NALLEY V. BANIS, M.D. (COA 11/9/2007)

NALLEY V. BANIS, M.D.
TORTS: Medical negligence and expert witnesses

2005-CA-001334
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 11/09/2007

COA affirmed summary judgment dismissing medical negligence claims filed against physician.

Dr. Banis performed elective chin implant and brow lift procedures on Mrs. Nalley at Norton Hospital. Several days later, she developed a staphylococcus infection near her chin implant, requiring Dr. Banis to remove the implant. Thereafter, Mrs. Nalley and her husband filed their complaint in the circuit court.

Despite the general rule that expert testimony is necessary in most medical malpractice cases, the Nalleys premised their entire case on the exceptions to this general rule and maintain that expert testimony is not needed to meet their burden.

Kentucky recognizes two exceptions to this requirement, both of which permit the inference of negligence even in the absence of expert testimony. See Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992).  Expert testimony is not required if “’any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care.’” Id. at 655

Regarding the second exception, if the defendant physician makes admissions of a technical character from which the jury can infer that he acted negligently, a plaintiff would not have to present expert testimony. Id. A "trial court’s ruling with regard to the necessity of an expert witness [is] within the court’s sound discretion."

The circuit court did not abuse its discretion in rejecting Nalleys’ arguments that the exceptions to the necessity for expert witnesses apply to the case at hand. Laypeople do not have sufficient general knowledge to recognize that infection is the result of negligence.

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