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UMKC School of Law
Levit, Nancy

Prof. Nancy Levit

Spring 2010

i. Standards
i. Checklists (ie blood pressure, check fam history)
ii. Practice guidelines
1. Walski v. Tiesenga
iii. Facts: Laryngeal nerves were severed in thyroidectomy operation. Expert witness testifies to his own preference in operation, but noted that everyone uses the approach that suits him best.
iv. Holding: For docs, Court said this wasn’t good enough to establish the standard of care through medical expert testimony.
v. Plaintiff generally must establish standard of care through medical expert testimony. The plaintiff must then prove, judged in the light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Must establish a departure of the SOC.
a. Here, his testimony didn’t say that his is the SOC always, just said what he would have done.
vi. Need expert testimony to establish the std. of care b/c without it the jury isn’t qualified to determine the standard.
vii. Although plaintiff used a treatise to cross-examined the doctor, the treatise could not be used as substantive evidence.
2. Exceptions
i. Gross Negligence – do not need expert testimony for common
ii. Common Knowledge – any lay person would know that negligence
iii. Hospital Rule – licensing regulations, accreditation standards, and bylaws
like evidence of custom, were admissible as evidence of the standard of
care by which the conduct of a hospital would be judged. Don’t need expert
iv. Drug Rule – warnings and instructions accompanying drugs establish
standard for their use. Ohlehschlagger
3. Treatises – can use for impeachment evidence, but since no ability to cross, it’s hearsay. Some states have modified this rule.
4. Missouri Court rule says you can do a financial deposition of a witness to find out if he’s a professional expert witness.
5. Defense strategies to counter information of high number of medmal deaths:
i. Medicine isn’t exact science
ii. Only a small number of errors lead to death
iii. Other factors are equally if not more important, such as patient self-care.

6. Self v. Exec. Committee Georgia – if it’s not a claim of medical malpractice, no requirement of expert testimony. (slipping and falling in hospital doesn’t call for expert)
ii. Limits and Variations on standard of care
i. Pull v. Rateeno
a. Facts: P wanted breast reduction but doc performed augmentation. Could P recover under K theory?
b. Holding: Can’t look to if doc breached the K of the agreement of the surgery, he agreed to perform, must still look at the departure from SIC
c. Why not K theory recovery?
1. Didn’t want to hold P to too low a standard
2. Hard for Doc to guarantee certain outcomes
ii. Expert Testimony may also be required to show causation
a. Smith v. Knowles –
1. Woman with pre-eclampsia not diagnosed or treated properly. Plaintiff did not put on expert testimony as to standard of care or that the doctor breached a standard, only treatises and his own testimony.
2. Also need expert testimony on causation elements – “It was more probably that death resulted from some negligence for which defendant was responsible that from something for which he was not responsible.”
iii. If medical community is divided, physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.
iv. Vergara v. Doan –
a. Facts: Parents alleged that doctor’s negligence during delivery caused permanent injuries to their child. Hospital was in a small town.
b. Issue: Which standard to use, modified locality, locality or strict?
c. Holding: Court abandoned locality rule, in which doctors are judged according to the standard of doctors in similar size communities.
d. Locality rule was intended to prevent the inequity that would result from holding rural doctors to the same standards as doctors in large cities.
e. Problems with locality rule:
1. Can’t get expert witnesses to testify against another doctor in the same town
2. Practices among a small group of doctors would establish a standard of care below that required by law.
f. New Standard, Strict Rule: a physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, prudent and skillful practitioners in the same class to which he belongs, acting under the same or similar circumstances.
1. MO uses this standard,
v. Local Standard
a. A few states stick with the locality rule (MO has adopted the national standard)
b. Holmes v. Elliot – Out of town doctor testified to the national standard of care, but MS used a statewide standard. Statewide standard has to be a national standard.
c. Constitutional argument that a locality rule denies the plaintiff’s ability to get a witness.
d. Generally held to standard of their specialty. Relevant med. community is the specialty, not a geographic location.
e. Kerkman v. Hintz Chiropractor/Non-medical Practitioners
1. Facts: Plaintiff sued chiropractor. Trial judge allowed him to put on expert medical testimony, and instructed jury that the standard of care was the medical standard.
2. Holding: Court disagreed, noting that the legislature recognizes chiropractors as a separate medical specialty.
3. Chiropractor’s decision to treat cannot be tested in accordance with medical knowledge; it must be tested in accordance with chiropractic knowledge.
4. Chiropractic training is limited and chiropractors aren’t allowed to use certain medical diagnostic tools.
5. Duties of Chiropractors
(1) First determine whether the patient presents a problem which is treatable through chiropractic means
(2) Refrain from further chiropractic treatment when a reasonable chiropractor should be aware that patient’s condition will not be responsive to further treatment.
(3) If patient presents a problem outside the scope of chiropractic treatment, chiropractor must inform the patient that the problem presented is not within the chiropractor’s license to treat.
(4) No duty to refer patient to medical doctor (Other states do impose such a requirement).
6. If a chiropractor continues to treat a medical condition after discovering it, he may be practicing medicine without a license.
f. Hirpa v. IHC Hospitals, Inc.
1. Facts: Patient in labor became unresponsive and attending physician called “code blue”. Second physician arrived but couldn’t revive her. Second physician claimed Good Samaritan immunity during emergency situation.
2. Holding: Doc can’t use GS stat, question of fact whether he had a preexisting duty already. ERs won’t give it cuz they already have a DOC in ER situations
g. HMO Liability – Administrative vs. Medical Decisions. HMOs are only liable for medical decisions such as patients lev

ctions for use of medical supplies. Explicit directions could be proof of violation of standard of care, without needing an expert.
h. Restatement factors for new causes of action
1. Specificity of legislative provision
2. Adequacy of existing remedies
3. Extent to which new tort would supplement or interfere with existing remedies
4. Importance of interest protected
5. Extent of change in tort law
6. How burdensome on judiciary
i. Elements – something that is so obvious that it makes the case, used when causation is uncertain.
i. Injury would not normally occur absent negligence
ii. Exclusion of plaintiff’s fault or other causes
iii. Bring fault home to the defendant
ii. P has to bring fault to D, either through showing exclusive control/that instrumentality caused harm and that was w/in D’s duty.
iii. Kelly v. Hartford Casualty Ins. Co.
i. Facts: Woman complained of rectal damage from enema, also P had history of anal diseases.
ii. Holding: No RIL cause of action. RIL may be involved in a med-mal action where a layman is able to say a matter of common knowledge that the consequences of the professional treatment are not those which ordinarily result if due care is exercised.
iii. Reqs for res ipsa:
a. The event in question must be of the kind which doesn’t ordinarily occur in the absence of negligence
b. The agency or instrumentality causing the harm must have been w/n the exclusive control of the D.
iv. Although there was testimony that the injury wouldn’t normally be caused absent negligence, since the plaintiff had a history of anal diseases, couldn’t rule out plaintiff fault.
v. Can’t use RIL if can’t eliminate other factors, including pre-existing condition, allergic reaction, or some other frailty in the plaintiff.
iv. Salathiel v. State
i. Facts: Plaintiff in bile study had injury that required corrective surgery.
ii. Holding: Occurrence in question itself contains a sufficient basis for the inference of negligence and causation. Common knowledge of layman. May need expert testimony to give explanation that will allow layman to reach a conclusion based on common knowledge.
iii. RIL was okay – injury wasn’t an ordinary risk, patient was in good health before, doctor had control over instrumentality.
v. Ybarra v. Spangard – collective liability
i. Facts: Patient went in for appendectomy and came out with shoulder injury. Multiple defendants, and none would testify against each other as to what happened in operating room.
ii. Holding: No showing of a particular defendant or instrument’s causing the injury. Nevertheless, plaintiff could use RIL to ferret out the negligence.
iii. Ds had duty to keep P safe
iv. This is a minority view – usually can’t use RIL against multiple defendants unless plaintiff has narrowed the guilty list.