Friday, March 14, 2008

Nebraska Supreme Court affirms summary judgment in favor of doctors who performed gastric bypass operation on the Plaintiff and then treated her for subsequent complications of the surgery. While the Nebraska Supreme Court would allow the plaintiff to present non-expert testimony on the standard of care and deviation from the standard of care in an obvious case of malpractice, the plaintiff still needed to present expert testimony for causation. Thone v. Regional West Med. Ctr., S-05-1556, 275 Neb. 238 The Plaintiff had gastric bypass surgery which involved doctors' placing a band on her stomach. She developed complications 6 months later and had to go back to the hospital. Doctors apparently did not take action to identify the reasons for her distress and correct them for five days. Plaintiff sued for malpractice but when the defendants moved for summary judgment she failed to present affidavits from experts to show she could make a prima facie case of malpractice (standard of care, deviation from the standard of care, and proximate cause of the injury). The Scotts Bluff County District Court granted the defendants summary judgment. The Nebraska Supreme Court affirms, but only because the plaintiff failed to present an affidavit from an expert that the doctors' alleged malpractice was the proximate cause of her injuries. "the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette. Pursuant to the common-knowledge exception, a layperson can infer that a reasonable physician would not wait 5 days before rendering aid to a patient in Collette’s condition. However, the B ioEnterics manual does not trigger the manufacturer-instruction exception in this case. A s such, the lack of expert testimony proves fatal to the T hones’ claims that appellees committed negligence by deviating from the instructions set forth in the B ioEnterics manual when attending to Collette’s ailments." "lay testimony may suffice to establish a defendant’s deviation from the standard of care." See Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994). "Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons." "Without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her."

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