In a medical malpractice action, it is essential to have proper medical experts. Medical experts help show the defendant medical provider failed to meet the standard of care for that particular specialty. The Appeals Court recently issued a decision, Russo v. Fisher (15-P-1264), which reviews whether or not a summary judgment was appropriate in a medical malpractice action. The patient alleged that the defendants failed to diagnose his subdural hematoma in April 2011, which was diagnosed a month later. The appellate court looked at whether or not the injured patient provided enough evidence through an expert witness to show that the emergency room physicians did not meet the standard of care.
The injury occurred after the patient carried a large bathtub up the stairs in February 2011. He suffered neck pain soon afterward. Twice in March and once at the end of April, the injured man came to the same emergency room and was seen by three doctors. Each time, he complained of neck pain. On the second visit, an x-ray was taken of his cervical spine, and it showed a normal result. He was diagnosed with torticollis (known as “twisted neck”), paracervical strain, and cervical strain. Each time, he was prescribed medications and noted to not have neurological deficits.
The injured man then went to a primary care physician in May. No neurological deficits were found in the first visit, but the injured man was diagnosed with a neck spasm. On the second visit, less than a week later, the injured man complained of neck pain radiating to the head and changes in personality. The doctor ordered a CT scan and referred the injured man to neurology. Twelve days later, the CT scan revealed a subdural hematoma, which resulted in a craniotomy and a follow-up surgery for an infection.
After the medical tribunal found there was no sufficient evidence to raise a legitimate question of liability, the defendant doctors filed motions for summary judgment. By the hearing, a little more than four years after the surgery, the injured patient still did not have a medical expert or an expert opinion letter. Summary judgment was granted, and the injured man appealed. In its review, the appellate court pointed to case law that provides an exception to the general requirement that an expert witness in the specialty must show that the defendants fell below the standard of care. Under the exception, lawsuits will be allowed without an expert affidavit or testimony when the negligence is so obvious that a jury can determine it without the expert. The appellate court pointed out that this circumstance is extremely rare and did not apply to the case at hand. The decision was affirmed, and the lawsuit remained dismissed.
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