The Kansas Supreme Court's rare split decision is allowing a Stormont Vail Health patient to continue her lawsuit against a Topeka hospital and doctor who removed the wrong organ from her body during a routine procedure.
When Jeannine Williams-Davidson checked into Stormont Vail to remove an adrenal gland, she had no idea Physician Nason Lui would remove part of her pancreas instead.
While Williams-Davidson's lawsuit is justifiable, courts are at odds regarding whether a medical expert's testimony is required to determine if Lui's actions, including the removal of the incorrect organ while overlooking the noncancerous tumor organ, constituted a breach of policy.
Kansas law typically mandates plaintiffs to present expert testimony in medical malpractice lawsuits due to jurors' limited medical knowledge. However, there's an exception known as the common sense and knowledge clause. This exception comes into play when a patient's care is substandard and apparent to an average person.
Douglas County District Court previously ruled against the patient because a medical expert was not presented to the court, ultimately dismissing her claims.
In July, the Kansas Court of Appeals reversed the decision after a three-judge panel disagreed with the original ruling, revealed The Topeka Capital-Journal.
"When the surgeon misidentifies and removes all or part of a healthy organ, leaving the organ the surgeon intended to operate on untouched, the common-knowledge exception alleviates the need for expert testimony to establish the standard of care or a breach of that standard," wrote judges Amy Fellows Cline and Jacy J. Hurst.
Judge David E. Bruns voiced his dissent, emphasizing that the error was unintentional.
"The average layperson would not have the knowledge necessary to determine whether this mistake rose to the level of a breach of the appropriate standard of care by a surgeon," Bruns wrote. "In other words, I do not believe it is patently obvious that the bad result occurred due to a breach of reasonable care."
Cynthia J. Sheppeard, who represented both Lui and Stormont Vail, said that Lui and a second doctor who assisted with the laparoscopic surgery with him would "testify that what happened sometimes happens, even with the best of care."
"They were so close together, and the adrenal and the pancreas looked so much alike, and there was blood in the field, he'd been removing the adhesions," Sheppeard continued.
"Between the two of them, they thought they were removing the adrenal."
Jason Belveal, an attorney representing Williams-Davidson and her husband, Jeffrey Davidson, told the court,
"I do believe that if you say to a person, I went in for surgery and my doctor left behind the diseased organ, cut out a healthy organ - or a big part of a healthy organ - any person off the street is going to go, 'Yikes, something went wrong on that."
"Is it justice for all, or is it justice for those folks who can afford an expert to come in and say, 'No, this is wrong,'" adding that "at some point, we should trust the jurors to be able to make certain decisions."
