Top court: In medical liability cases, expert testimony is a must

Tanya Albert Henry , Contributing News Writer

A recent Supreme Court of Kentucky decision makes clear that juries must hear from—and base decisions on testimony from—medical experts in medical malpractice cases involving complex conditions such as strokes instead of relying on “common knowledge” when rendering decisions.

Standing for physicians

The AMA Litigation Center is the strongest voice for America's medical profession in legal proceedings across the country.

The high court’s opinion helps ensure physicians will be less likely to face jury prejudice or practice defensive medicine to protect themselves from spurious lawsuits. Those were two concerns the Litigation Center of the American Medical Association and State Medical Societies, along with the Kentucky Medical Association, expressed to the court in a joint amicus brief filed in the case, Lewis v. Shackelford/Ashland Hospital v. Lewis.

The worry that the legal landscape for physicians could change in Kentucky arose after an appellate court said a patient, David Shackelford, could go forward with a lawsuit against a physician and a hospital that alleged the man would have suffered less harm from a stroke had it been detected earlier. The claim was allowed even though no experts testified that the physician or hospital took any action—or failed to take any action—that caused the patient harm.

The appellate court reversed the trial-court decision and ruled the claim could go forward because it is “common knowledge” that promptly identifying stroke and treating the condition is important. The AMA Litigation Center and the KMA warned the standard would be “a recipe for imposing liability for harm that physician did not cause and could not have prevented based on the accepted standards of care.”

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The Supreme Court of Kentucky overturned the appellate court decision in a late August decision. The high court disagreed with the appellate court’s rationale that public awareness campaigns from groups such as the American Heart Association and American Stroke Association emphasizing that “with a stroke, time lost is brain lost” was reason enough to allow the lawsuit to go forward.

“Although public service campaigns have increased public awareness and knowledge about stroke symptoms and timely intervention, that general information cannot provide the medical expertise necessary to evaluate this particular claim of medical malpractice,” the state’s top court says in its opinion. “In other words, the question is not simply whether ‘time lost is brain lost.’ Rather, the specific facts and circumstances of this case play a significant role in determining whether the alleged negligent conduct was a substantial factor in Shackelford’s injuries, and to what extent.”

Why expert opinions matter

The court in its opinion underscored that nuisances in Shackelford’s case—like any complex medical case, be it cancer, a heart condition or stroke—called for medical expert testimony in the courtroom.

Shackelford was at the hospital because he had chronic cluster headaches and interventional radiologist Paul Wesley Lewis, MD, performed an angiogram to try to determine what was causing the headaches. While in the recovery room, Shackelford complained of a headache and white spots in his vision, symptoms that are not uncommon after the procedure. He did not have weakness, slurred speech or facial palsy, which may indicate a stroke. He was kept for observation for eight hours, twice the usual monitoring period after an angiogram, and sent home around 7:30 p.m.

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Following discharge, he came back to the hospital at 8 a.m. after having disoriented behaviors, and an MRI showed signs of a recent stroke.

“Despite public perception about timely intervention, the average layperson cannot properly weigh such complex medical evidence without the aid of expert opinion,” justices wrote in their opinion, noting that none of the experts in the case concluded that the post-procedure care was a substantial factor for any harm Shackelford experienced and pointed out that one expert opined that symptoms of stroke occurred after he left the hospital.

To allow such a case to go forward, the court said, would have ignored “Kentucky’s long-standing practice of requiring expert opinion evidence in medical malpractice actions to assist the finder-of-fact in understanding matters ‘of science or professional skill outside the ordinary experiences and range of knowledge of typical jurors and judges.’”