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Court reverses lower court and reinstates physician expert's testimony that gall bladder surgical error was malpractice

Shante Hooks sued her doctor, Lorenzo Ferguson, and St. John Hospital, after Ferguson botched a gall bladder operation by severing or damaging the common bile duct.  She presented the testimony of a surgeon who had performed 2500 similar operations  during a 25 year career, and who testified that the surgeon is required to identify the duct and surrounding tissue so that he or she can avoid damaging the surrounding structures.  He testified that it is a breach of the standard of care in all cases where the surgeon has failed to avoid injury to surrounding structures.  The Defense argued that the expert's testimony was not admissible because he was holding the defendant to an unduly harsh standard of negligence; the defense argued that since he claimed that any error to surrounding tissue is a breach of the standard of care, he was ineligible to offer a criticism of the surgeon.  The trial judge accepted this argument; struck the witnesses' testimony; and then summarily dismissed the case because the plaintiff no longer had an expert witness.

She appealed and the Appellate Court majority ruled that the trial judge was misinterpreting the expert's testimony and should not have dismissed his opinions.  The appellate majority pointed to a similar previous case that came to the same conclusion, and noted that the dispute between the opposing party's witnesses is precisely the type of dispute that should be weighed by jurors.  The judges acknowledged that the expert could offer no medical literature to support his claim of negligence whenever the common bile duct is injured unintentionally, but pointed out that even the one author cited by the defense expert appeared to recognize that this issue was a dispute in the medical field.  The judges also pointed out that this kind of medical expert claim cannot be "replicated" through controlled studies and therefore the lack of "supporting literature" cannot be dispositive.

Judge Christopher M. Murray, who virtually always sides with insurers and virtually always rules against personal injury claims wrote a separate opinion.  If not controlled by existing precedent, he would have affirmed the exclusion of the obviously qualified expert's opinion and upheld the summary disposition.  Like Judge Hoekstra, previously, Murray would hold that since the plaintiff's surgeon could not point to scientific literature or testing to support his opinion, and since he appeared to require "infallibility," his opinion should be excluded, regardless of his personal qualifications. 

If a similar standard were to be applied in other negligence actions, no one could ever hold a defendant responsible for causing an injury by making a mistake.  In Murray's analysis, if doctors don't acknowledge accountability for screwing up and cutting the wrong structures, no one should be able to hold them accountable for doing precisely that.

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