By Alex Stein

Every lawyer with some experience in medical malpractice knows that a doctor’s mistake in diagnosing or treating a patient does not necessarily amount to negligence. Doctors sometimes make mistakes that are unavoidable or just reasonable, given the constraints under which they treat patients. For that reason, a patient would be ill-advised to sue her doctor on the mistake theory. Doing so could be a very serious mistake.

Valence v. Jefferson Parish Hosp. Dist. — So.3d —-, 2013 WL 5849724 (La. App. 5 Cir. 2013), provides a textbook illustration of that point.

At the close of the plaintiff’s hernia repair surgery, his surgeons forgot to retrieve a hemostat from his abdomen. Minutes later, while the plaintiff was still in the operation room, this mistake was discovered by an instrument count and confirmed by an x-ray. Following this discovery, the surgeons retrieved the hemostat from the plaintiff’s abdomen, which fixed their mistake at a minimal pain. Alas, this mistake was accompanied by another: according to the plaintiff, the device that the surgeons used to affix an oval mesh patch to his abdomen misfired twenty-one staples into his abdomen. Allegedly, twenty of those staples could not be retrieved.

The plaintiff thought that these mistakes would allow him to proceed in his action against the surgeons without an expert witness. He was wrong. The plaintiff’s action was summarily dismissed by the trial judge, and the court of appeals affirmed that dismissal. The plaintiff’s action was doomed because it did not satisfy the “common knowledge” exception to the expert witness requirement. Specifically, it did not allege an “obvious negligence that could be inferred by a lay person [as in cases] where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” Pfiffner v. Corea, 643 So.2d 1228, 1234 (La. 1994). The surgeons’ mistakes looked bad, but they may have still been non-negligent because doctors are afforded a permissible margin of error. To show that the surgeons’ mistakes fell outside that margin, the plaintiff had to call an expert witness.

For the same reason, the plaintiff could not benefit from the res ipsa loquitur presumption. This presumption moves the case to a jury when the plaintiff’s injury “is a type which ordinarily would not occur in the absence of negligence.” Cangelosi v. Our Lady of the Lake Reg. Med. Ctr., 564 So.2d 654, 667 (La. 1989). To establish this prerequisite in a medical malpractice action that falls outside the narrow scope of the “common knowledge” exception, the plaintiff must produce expert testimony.

Finally, the plaintiff also could not rely on the “foreign object” exception to the expert testimony requirement. For that exception to apply, the forgotten hemostat ought to have stayed in the plaintiff’s abdomen for more than just a few minutes. Valence, id. at *4. As for the surgical staples, the plaintiff, once again, ought to have called an expert witness “to establish the standard of care in the use of the tacking device and number or type of staples appropriate for [his] surgery, the placement and type of mesh patch appropriate for such surgery, and the proper procedure for instrument counts and instrument retrieval following surgery.” Valence, id. at *4.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School and a Visiting Professor of Law at Harvard Law School. His teaching responsibilities at Harvard include Torts and a seminar on Medical Malpractice. Before joining Brooklyn in Fall 2016, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.

2 thoughts on “MISTAKE ≠ MALPRACTICE

    • Nicely put, Chris!
      Incidentally, even though it would be legal malpractice, it might be another mistake for the aggrieved patient to sue her lawyer unless the law allows her to recover compensation for her lost chances to win the malpractice suit (as opposed to proving that the malpractice suit was a winner). 🙂

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