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When Simple Malpractice Isn’t Simple



A woman falls on broken glass, cuts herself, and goes to the local emergency room, where the doctor on duty sends her home without finding a piece of the glass lodged in her buttocks.  Several days later, another doctor orders a CT scan–not done by the first doctor–that shows the glass.  On its face, many people would think this is clear malpractice–the first doctor should have found and removed the shard of glass.

A recent decision by the Massachusetts Appeals Court reminds patients and lawyers alike that even seemingly simple malpractice cases aren’t all that simple.  In Delaney v. Russo, the court dismissed the case because the patient didn’t have a medical expert witness to testify that the emergency room’s doctor’s failure to find the piece of glass was malpractice.  The patient had claimed that the malpractice was so obvious that a jury could recognize it without testimony from an expert.  The court disagreed, and that was the end of the plaintiff’s case.

The general rule in medical malpractice cases is that expert testimony is required to prove both the standard of care–what the average health care provider would have done under the circumstances–and causation–how the alleged negligence of the defendant caused an injury.  The only exception is if the negligence is so obvious that it falls within the “common knowledge” of the jurors.  In fact, this seemingly straightforward case would require expert testimony on several points: 1) that the standard of care required the emergency room doctor to do a particular test to search for broken glass; 2) that the test if performed, would have located the glass, and 3) that the patient was harmed by the doctor’s failure to find the glass.

Many people with potential malpractice claims that seem obvious are dismayed to learn that the legal requirements for expert testimony make it difficult or impossible to bring their claims.  Particularly if the injury is minor or temporary, the expense of hiring an expert witness can be prohibitive, and the patient is left with no practical remedy.

The result in Delaney v. Russo demonstrates the danger in attempting to proceed with a malpractice case without an expert witness.  Experienced malpractice lawyers can help determine whether a claim is valid and whether expert testimony will be required to bring the case.

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