Second Removal Of The Same Gallbladder Is Obvious Malpractice

Bob Carroll

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Contrary to conventional wisdom, an expert is not always needed in a medical negligence case since there are some deeds that even lay persons know are below the standard of care, and "]i]ndeed, a layperson would have no difficulty in recognizing Dr. Sharpe's purported deviation from the standard of care in advising and undertaking to remove a gallbladder that he had previously removed."

I would like to think this language from the Kentucky Law Blog would also apply to a medical malpractice case in Florida. However, my bet would be that a Florida court would, in fact, require the testimony of a medical expert to support even this case.

Some Medical Negligence is so obvious that an expert is not needed

MATHENEY V. SHARPE, MD

It is well-established that the burden of proof is upon the plaintiff in a medical malpractice case. Morris v. Hoffman, 551 S.W.2d 8 (Ky.App. 1977).

The negligence of a physician generally must be established by medical or expert testimony unless the negligence and "injurious results" are so apparent that a layperson with general knowledge would have no difficulty recognizing it. Id.; Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). See also Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992).

In light of this admitted fact [the prior removal of the gallbladder, I presume], we are of the opinion that the alleged medical negligence of both Dr. Sharpe and Dr. Schwab was well within the general knowledge of a layperson. Indeed, a layperson would have no difficulty in recognizing Dr. Sharpe's purported deviation from the standard of care in advising and undertaking to remove a gallbladder that he had previously removed.

Moreover, we, likewise, believe that a layperson would have no difficulty recognizing Dr. Schwab's purported deviation from the standard of care in reading Matheney's ultrasound as a diseased gallbladder, when, in fact, no gallbladder existed. Simply put, the alleged medical negligence is such that expert testimony was simply unnecessary.

I am reminded of the words, Fish gotta swim; birds gotta fly. Some docs gotta remove gallbladders.