Legal News Headlines

 
Copyright 2008 Dolan Media Newswires

 August 6, 2008 Wednesday

SECTION: NEWS

LENGTH: 667 words

BYLINE: Angela Riley

BODY: 

Plaintiffs can now bring medical malpractice cases that involve common medical knowledge that needs a medical expert's testimony to explain, the Missouri Supreme Court ruled.

The legal theory of res ipsa loquitur - Latin for "the thing speaks for itself" - provides that, in some circumstances, the mere fact of an accident's occurrence raises an inference of negligence. It is used when it is not particularly clear what caused an injury, but all probable causes are under the defendant's control.

Previous caselaw had seemed to indicate that expert testimony wasn't allowed when presenting such a theory. The Supreme Court ruled Tuesday that such testimony was allowed. Twenty-eight other jurisdictions have permitted the testimony. Eight have rejected its use.

In June 2003, Janice Sides underwent back surgery at St. Anthony's Medical Center in St. Louis. Her surgeon was Dr. Thomas K. Lee who was employed by Tesson Heights Orthopedic and Arthroscopic Associates. In 2005, she and her husband Clyde Sides filed suit against the hospital, doctor and his employer in St. Louis County Circuit Court, alleging that she was infected with E. coli during the surgery.

In their petition, the plaintiffs alleged a res ipsa loquitur theory against the defendants on the basis that the infection in the surgical site does not occur in the absence of negligence.

The defendants moved to dismiss on the grounds that the plaintiffs could not proceed on res ipsa and were required to assert a specific negligence theory against the defendants. The trial court granted the defendant's motion, and the plaintiff's appealed to the Missouri Court of Appeals Eastern District.

"Our appeal to the Court of Appeals was really only a formality," said the plaintiffs' attorney, Matthew Meyerkord, of Meyerkord, Rineberg & Graham. "There was a prior [Missouri] Supreme Court ruling on that point which didn't favor us. We knew that only the Supreme Court would be able to rule on this issue. "

The Missouri Supreme Court had previously decided in Hasemeier v. Smith that a res ipsa theory could not be used in Hasemeier's wrongful death action. But Sides' case was different. Hasemeier did not offer expert testimony to educate the jury or lay person that there was a breach of care. The Sides wanted to provide expert testimony to prove res ipsa loquitur applied in this case.

In a 5-1 decision, the court ruled that a plaintiff in a medical malpractice case must present medical expert testimony as to negligence under res ipsa loquitur unless it involved the two exceptions traditionally recognized to the rule requiring expert testimony - a physician's leaving a foreign object in someone's body, or a patient's receiving an injury to a part of the body not being affected by an operation or treatment.

Special Judge Don Burrell, Jr., of the Court of Appeals Southern District, sat in for Judge William Ray Price Jr. Burrell concurred with the court's result because the plaintiffs' had sufficiently pleaded a claim for negligence to proceed, but wrote in a separate opinion that there was no need to rule on the res ipsa issue at this stage of the litigation.

Meyerkord said he doesn't think the court's ruling will have widespread effect.

"Obviously this decision was very important to my clients, but I don't think there will be many instances where res ipsa will come up," he said. "It's pretty esoteric, and I definitely don't believe the defense's claim that this will open a Pandora's Box and the floodgates will open with filings involving this. "

V. Scott Williams, of Hazelwood & Weber, represented St. Anthony's. He said the ruling is a deterrent to legislative efforts to control the cost of health care.

"The court is opening a Pandora's Box, because over the last few years the Legislature has been trying to control cost of health care by tort reform," he said. "Tort reform has been working. There's now a concern for a lot more questionable malpractice suits, and the litigation of them is a very expensive process. "

LOAD-DATE: August 6, 2008