In a recent Kentucky Supreme Court case, a medical malpractice suit was filed by a couple against a doctor and his practice. The doctor had performed a thyroidectomy on the wife. She started experiencing breathing difficulties the night of the surgery. She was placed on a ventilator for four days and stayed in the hospital a total of 12 days. Post-surgery, she had trouble breathing and talking. She consulted with an otolaryngologist. He diagnosed her with right vocal cord paralysis. The couple filed a medical negligence lawsuit in connection with the thyroidectomy.
During discovery, the doctor asked whether other physicians had stated that he deviated from good medical practice. The plaintiffs’ response stated that a surgeon had verified there was a departure from the appropriate standard of care to cut or otherwise alter the vocal cord. The response cited various treating physicians. The doctor filed a motion to set the case for trial. The judge set a schedule requiring the couple to disclose expert witnesses on a particular date. The order by the judge did not contain a specific deadline for disclosure of expert witnesses. It did require quick and efficient witness disclosure.
Three years after the suit was filed the doctor moved for summary judgment. He argued they had failed to identify a surgeon who would testify he deviated from the standard of care. The plaintiffs filed a motion to reschedule the trial and to get an extension of time to list experts. They argued that summary judgment was not appropriate because evidence in the depositions raised genuine issues of material fact. The woman’s medical records showed he was being treated for hypothyroidism, or an underactive thyroid before the surgery. She consulted with an internist because she was short of breath and had palpitations. An ultrasound showed she had an enlarged right lobe of thyroid with a small lesion. She was referred to the defendant doctor to see whether removal of the gland was appropriate. She consulted with him once before the surgery and signed a consent form in connection with it. The form explained she had a “thyroid storm.” The internal medicine doctor said a thyroid storm is an emergency condition. The appropriate treatment is hospitalization and consultation with an endocrinologist. Surgery is not appropriate.
The defendant doctor, however, testified that the patient had presented with thyroid storm and excess activity leading to irregular heartbeat. He also testified that the woman had requested the surgery, not that he had told her to have one. He also testified he didn’t know if he had damaged a nerve during surgery. However, he testified paralysis of a right vocal cord could happen after a thyroidectomy even if a surgeon didn’t commit malpractice. Another doctor also testified this could happen, though he agreed with the internal medicine doctor that hospitalization and consultation with an endocrinologist was the appropriate treatment for thyroid storm.
According to the plaintiff, she was not told surgery was optional, nor warned her about side effects. The plaintiffs argued that the deposition testimony created a legitimate dispute about the need for a surgical expert witness. The trial court granted summary judgment for the doctor. The plaintiffs filed a motion to vacate the Court’s Order and subsequently filed a documents to substantiate their claims. The trial court denied the plaintiff’s motion. The plaintiffs appealed and the appellate court reversed.
The Kentucky Supreme Court reviewed the case. It explained that in Kentucky a plaintiff alleging medical malpractice must usually provide expert testimony to show a failure to meet the standard of care. The Court disagreed with the Court of Appeals that there was a true dispute about the need for an expert because there were factual issues raised by deposition testimony. The Supreme Court ruled that summary judgment was appropriate on the issue of the doctor’s surgical performance as a result of the plaintiff’s failure to present expert testimony. However, summary judgment was not appropriate on the issue of whether surgery was the appropriate response to the woman’s diagnosis. That issue was sent back to the lower court. If you are seriously hurt due to medical negligence, you should consult with a personal injury attorney as soon as possible to determine whether any relief is available to you. The knowledgeable Kentucky personal injury attorneys of English, Lucas, Priest & Owsley may be able to help. Contact us at 270-781-6500 or via our online form.