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Patient must present expert testimony to explain malpractice when her arm is burned during a hysterectomy

Kimberley Rode woke from her hysterectomy at Hurley Hospital in Flint with a severe burn on her right forearm.   She hired attorneys who complied with some, but not all of the medical malpractice "tort reform" procedural rules.  They proceeded on the theory that someone had to be negligent for Rode to suffer the burn, and that only the Operating Room employees of the Hospital would know what happened or could have caused the burn.

The trial judge granted summary disposition to all of the Defendants and Rode appealed.  The Court of Appeals ruled that Rode needs expert testimony to explain why there is negligence involved in the burn she suffered.  The judges also ruled that Rode must comply with the malpractice procedures which require an Affidavit of Merit from each specialty or profession represented in the E.R., confirming that if that employee or physician caused the burn, he or she breached the standard of care (and explaining how).

The plaintiff had argued that when an unconscious patient suffers a severe burn far from an operative site, no expert testimony should be necessary to establish professional negligence.  The Judges disagreed, deeming the ability to discern the cause and responsibility for a burn to be beyond the ken of jurors' common knowledge or experience.  Since the patient doesn't know who caused the burn, or how it happened, and since the Affidavit(s) of Merit must be filed before any discovery or investigation can be conducted, the patient must present explanations for how each potential O.R. employee or doctor could have caused the burn and why that would be negligent.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262