Brouwer v. Sisters of Charity Providence – Common Knowledge Exception to Expert Witness Requirement

Aug 3, 2014 - Medical Malpractice by Cross & Smith

In most medical malpractice actions, expert testimony is essential for the plaintiff as a precursor to submission of a claim to a jury for determination on the merits. Absent the testimony of an expert witness on behalf of the plaintiff, most judges won’t allow the medical malpractice case to move forward.

Tuscaloosa medical malpractice lawyers recognize one major exception:  the common knowledge challenge. This rule holds that even though there is a general prerequisite for expert testimony to establish the standard of care and its breach in malpractice cases, this kind of expert testimony isn’t required when the subject of the substandard conduct is within the common knowledge of persons who aren’t medically trained. In other words, it’s fully comprehensible to ordinary, non-medical members of the public.

An example might be a dentist who takes out the wrong tooth or a surgeon who accidentally leaves an instrument inside a patient’s body. These cases would be relatively straightforward. Still, the expression “common knowledge” makes the whole process sound less challenging than is the reality. Expert medical witnesses are costly, and it can sometimes be difficult to find one who is both qualified and willing. It’s important not to spend time and money at the early stages if it isn’t necessary. However, there is a general lack of consensus among courts as to what qualifies as “common knowledge,” leaving the interpretation sometimes open, and varying from judge to judge or court to court.

One Tennessee appellate court judge was quoted in 1978 as saying the common knowledge exception is applicable when medical negligence is “as plain as a fly floating in a bowl of buttermilk.” This is indicative of a lack of meaningful guidance from courts on this matter, and plaintiffs whose attorneys incorrectly decide the exception applies face an adverse summary judgment in the favor of the defendants, meaning the client might never get his or her day in court.

More recently, the South Carolina Supreme Court weighed such an exception claim in the case of Brouwer v. Sisters of Charity Providence. Here, the court sided with a plaintiff in finding she had successfully invoked the common knowledge exception, as recognized in that state, and therefore was not required to file an expert witness affidavit in her notice of intent to file a lawsuit.

According to court records, the plaintiff was admitted to the hospital for a procedure used to treat sleep apnea. During the surgery, the plaintiff suffered a severe allergic reaction that required she be transferred to the Intensive Care Unit. The plaintiff attributed her reaction to a latex allergy. Although she had disclosed to medical personnel on several admission forms that she suffered from this allergy and was even given a wrist band identifying it, several medical personnel used latex gloves when performing the procedure.

Thankfully, she survived.

In filing her notice of intent to file suit, she indicated it was her good-faith belief that the allergic reaction to latex is within the bounds of common knowledge and experience, and therefore no expert medical testimony was required as a foundation for her claim.

Defendants moved to dismiss the claim for failure to include the affidavit of an expert witness. The trial court granted the motion to dismiss. The case was appealed to the appellate court, which then certified it to the state supreme court, which reversed the dismissal. Although the plaintiff failed to specifically invoke the common-law exception when filling her claim, that doesn’t mean her claim didn’t fall within those bounds.  That doesn’t mean that at some point the plaintiffs won’t need to secure an expert witness for trial. However, lack of one at the early stages won’t end the case.

This is a decision that must be made carefully on a case-by-case basis. It’s important to make sure whichever law firm you choose is experienced in handling these types of cases.

Additional Resources:

Brouwer v. Sisters of Charity Providence, Aug. 6, 2014, South Carolina Supreme Court

The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, Nov. 27, 2/car-accidents/alabama-traffic-accidents-likely-to-increase-with-economic-recovery/, By Joseph H. King, University of Alabama Law School, Alabama Law Review