Common Knowledge Exception

In Cowart v. Widener, 287 Ga. 622 (2010), the Georgia Supreme Court said “most ‘medical questions’ relating to causation are perfectly capable of resolution by ordinary people using their common knowledge and experience, without the need for expert testimony. Thus, in a wrongful death action based on the theory that the defendant proximately caused the decedent’s death by stabbing her in the gut, the plaintiff is not required, in response to a motion for summary judgment, to come forward with expert testimony explaining in medical terms precisely how the wound led to her death.” That, however, is not the case when the link between a defendant’s actions and the plaintiff’s injury is beyond common knowledge and experience, as Cowart explained, such as with toxic torts.

An interesting medical malpractice case appeared in Kansas recently where the Court of Appeals found that the common knowledge exception applied, making it unnecessary to present expert testimony after the defendant filed a motion for summary judgment. In Williams-Davidson v. Lui (Kan.Ct. App. No. 124,946 7/28/2023 – UNPUBLISHED), Jeannine Williams-Davidson had surgery to remove her left adrenal gland. The surgeon not only failed to remove the damaged organ, but also removed part of a healthy organ – her pancreas. Jeannine required further surgery and ongoing medical treatment to remove the diseased organ and repair her pancrease.

The district court granted defendant’s motion for summary judgment because Jeannine “did not designate a medical expert to testify about the standard of care for performing Jeannine’s first surgery or whether the surgeon failed to meet that standard. It dismissed their remaining claims as moot after finding they all turned on the Davidsons’ allegations that the surgeon committed medical malpractice in Jeannine’s first surgery.”

On appeal, the Court of Appeals reversed. “When the surgeon misidentifies and removes all or part of a healthy organ, leaving the organ the surgeon intended to operate on untouched, the common-knowledge exception alleviates the need for expert testimony to establish the standard of care or a breach of that standard.”

Dr. Lui admitted that he removed the wrong organ, but denied that it was medical malpractice. He did not review medical literature prior to the surgery because he had done the operation before. He claimed “the adrenal gland and was in “the same general location where the adrenal [gland] could be.” He added that the tail of the pancreas can sit close to the tip of the kidney in the same location as the adrenal gland.” Dr. Lui admitted that his mistake warranted Jennine’s later readmission to the hospital as septic. Nonetheless, after the deadline for designating expert witnesses passed without Jeannine designating one, Lui moved for summary judgment. The “Defendants pointed out that normally an expert medical opinion is necessary to establish breach of the relevant standard of care for such claims. They argued that neither of the exceptions to this general rule—the doctrine of res ipsa loquitur and the common-knowledge exception—applied because they claimed the standard of care for a laparoscopic adrenalectomy was not susceptible to common knowledge and removal of part of the pancreas was an unintended outcome that occurred despite reasonable medical and surgical care.” Defendants argued the other claims were also subject to dismissal because they were derivative claims.

Davidson argued the Lui’s negligence was obvious, that it could be understood by laypersons, and therefore no expert testimony was required. The district court disagreed, finding that expert testimony was necessary to establish the standard of care. “Because there was “nothing about [the Davidsons’ claims] that [could not] be explored by examining the evidence to see whether such actions depart[ed] from the proper standard of care,” the district court concluded the doctrine did not apply. The district court also found that whether two people were needed to perform laparoscopic surgery was not an issue of common knowledge. And while acknowledging that removal of the wrong organ would seem to qualify as common-knowledge medical negligence, the district court nonetheless concluded that the exception should be limited to cases like the amputation of a wrong limb, rather than removal of a part of anatomy in the immediate area of the surgery.”

Reviewing the decision below, the Court of Appeals first stated the standard for granting summary judgment, which is substantially similar to the standard in Georgia – there must be no issue of material fact with all reasonable inferences drawn from the evidence in favor of the party against whom it is sought. It then restated the necessary elements to establish a malpractice claim in Kansas: “a plaintiff must prove the following: (1) The defendant owed the plaintiff a duty of care, requiring the defendant to exercise a certain standard of care to protect the plaintiff from injury; (2) the defendant breached that duty by deviating from the standard of care; (3) the plaintiff was injured; and (4) the injury proximately resulted from the defendant’s breach.”

Ordinarily expert testimony is required to establish these elements because negligence is not presumed and must be proven. However, “[t]he common-knowledge exception can apply to avoid use of an expert to establish the standard of care when what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of humankind generally. When the exception applies, lack of reasonable care may be established by lay testimony. … Whether or not the commonknowledge exception applies to a given set of facts is a question of law. It is a narrow exception and is rarely applied” Further, res ipsa loquitur “applies in a negligence action where there is no direct proof of negligence, but where circumstances are such as to leave no conclusion other than that the defendant is at fault.” Although the doctrine did not support certain specific allegations of negligence, such as performing the surgery without a second surgeon present, the Court of Appeals found “merit in the Davidsons’ argument that the common-knowledge exception applies to allow them to argue Dr. Lui breached the standard of care by misidentifying and removing the wrong organ without providing expert testimony on this issue.” Since only one exception was required to allow the Davidsons to establish negligence without an expert, the Court did not reach the res ipsa loquitur argument. The devision below was reversed and remanded.

Shifting gears, in Jackson v. Burrell, 602 S.W.3d 340 (Tenn. 2020), the Court examined the common knowledge exception, reviewing cases where it was applied or rejected and said: “What all of these cases have in common is the fundamental consideration of whether the conduct at issue involved the exercise of medical judgment or skill. In other words, whether the alleged negligent conduct involved technical or specialized knowledge of a medical procedure or a patient’s medical condition or whether the alleged negligent conduct involved medical decision-making—such as determining the type of treatment or procedure to perform or the type of equipment or medicine to use. If so, then expert proof would be necessary. As Professor King has suggested, this inquiry might be phrased as whether ‘[t]he specific decision making by the health care provider … involve[d] the exercise of uniquely professional medical skills, a deliberate balancing of medical risks and benefits, or the exercise of therapeutic judgment.'” Apply the exception in the context of a massage case, the Jackson court found that claims for negligent training, supervision, and retention is within the knowledge and experience of an ordinary layperson and does not require explanation from a witness with specialized knowledge of the massage industry.

In Georgia, failing to offer expert testimony to support a malpractice claim is dicey. In Zarate-Martinez v. Echemendia, 332 Ga. App. 381 (2015), the Court of Appeals – referring to the common knowledge exception as the “pronounced results” exception, stated that these cases are exceedingly rare. It affirmed dismissal of a plaintiff’s case after an insufficient affidavit was stricken for failing to comply with OCGA § 24-7-702 (which codified the Daubert rule). After the original expert affidavit was stricken, and additional affidavits filed pursuant to OCGA § 9-11-9.1(e), were also stricken as insufficient, the trial court dismissed the case. On appeal, the plaintiff argued the pronouced results exception should have been applied. In response, the Court of Appeals said the pronouced results “exception refers to those exceedingly rare cases wherein the medical questions presented concern matters which a jury can be credited with knowing by reason of common knowledge or the possibility of actionable medical negligence appears so clearly from the record that the plaintiff-patient need not produce expert medical testimony concerning the applicable standard of care to avoid summary judgment for a defendant-doctor testifying as to his own lack of negligence.” In point of fact, OCGA § 9-11-9.1 states that a Georgia plaintiff “plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim,” so a case where the affidavit is stricken as insufficient might be the only type of case where the common knowledge exception could be argued. With limited exceptions, such as the need to additional time due to a statute of limitations issue, complaints without the required affidavit are subject to dismissal. That was precisely the Court of Appeals’ rationale where it stated “Zarate-Martinez has failed to cite to any case holding that the statutory requirement for an expert affidavit in OCGA § 9-11-9.1(a) is obviated in such a case, and we decline to so hold here.” In Georgia, the expert affidavit is a pleading requirement “which operates separate and apart from the evidentiary burden on summary judgment and at trial.”

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