Kansas Court of Appeals applies the “common knowledge” exception to the expert witness requirement

Hubbard v. Mellion, 2013 WL 2129104 (Kan.App. 2013)

This case features a patient who underwent surgery to fix herniated disc. During the surgery, the tip of a surgical forceps, a rongeur, broke off in the patient’s disc space. The surgeon attempted to retrieve the broke tip but was unable to do so. The tip caused the patient serious complications and pain.

The patient sued the surgeon for malpractice without submitting medical expert testimony. Instead, she adduced the expert opinion of a Ph.D. metallurgist engineer, who examined the broken rongeur in his lab and ruled out the possibility that its tip broke off due to a manufacturing defect, improper maintenance, or wear and tear. To this testimony, the court added an experience-based observation that properly manufactured rongeurs generally do not break without users’ negligence. The patient consequently managed to establish res ipsa loquitur: the instrumentality that caused her injury was under the surgeon’s exclusive control; some unspecified negligence on the surgeon’s part was the most likely explanation of the accident; and the patient did nothing to contribute to her own injury.

Based on these findings, the court ruled that the patient’s suit should go to the jury that will use common knowledge to adjudicate the malpractice allegation.

This decision may seem obvious, but it isn’t. For example, the Michigan Supreme Court had refused to apply the “common knowledge” exception to a case in which one-half to two-thirds of a surgical needle broke off and lodged somewhere within the patient’s muscle: see Locke v. Pachtman, 521 N.W.2d 786 (Mich. 1994).