Federal Appellate Court Allows Medical Malpractice Plaintiff’s Case to Continue Without Expert Testimony

Earlier this month, the Fifth Circuit Court of Appeals released a decision allowing a medical malpractice plaintiff to continue on with her case despite the fact that she did not present expert testimony validating her claim. In the case, Bush v. United States, the plaintiff lost her husband shortly after he had a Left Ventricular Assist Device installed in his heart, after he had suffered a serious heart injury.

About a week after the surgery installing the device, there was a notice sent out by the manufacturer of the company. The notice explained that the unit could be defective under certain circumstances and might stop working. The notice explained that this could result in death.

After the plaintiff’s husband had the surgery and while he was still at the recovery facility, a nurse sat down with the plaintiff and her husband and explained how the unit worked. Part of this conversation covered the unit’s various “warning systems,” one of which was a series of beeps that varied in length. The plaintiff recalled being told that short repetitive beeps meant that there was some kind of non-urgent problem with the device, but a prolonged beep meant that there was a serious problem that needed to be addressed immediately. At no point did the nurse discuss the notice that was issued by the device’s manufacturer.

The plaintiff testified that the night before her husband died, the device was making a series of beeping noises. The couple called the nurse. The nurse had the couple perform diagnostic checks on the device, but they didn’t find that anything was wrong. The next morning, the beeping continued, and they called the nurse again. This time, the nurse said she would call the manufacturer, but in the meantime the woman should take her husband to the hospital if a loud continuous beep began.

Shortly after the woman hung up the phone with the nurse, the device began emitting a loud beep. The woman called 911, but her husband died before emergency responders arrived. The plaintiff filed suit against the federal government as the owner and operator of the hospital. The government sought early dismissal of the action against it because the plaintiff never presented an expert witness, which is normally required in medical malpractice cases. The court denied the motion, and after a trial the plaintiff was awarded roughly $220,000.

On Appeal

The government appealed the judgment, arguing that the lower court erred in failing to grant its motion. However, the court affirmed the lower court’s decision, explaining that, while the general rule does require expert testimony in support of a medical malpractice claim, there is an exception in “those rare cases in which a health care provider’s act or omission is clearly negligent within the common knowledge of laymen.”

Have You Been Injured in a Medical Accident?

If you or a loved one has recently been involved in a serious incident of medical negligence, you may be entitled to monetary compensation through a Maryland medical malpractice action. The skilled attorneys at the Maryland-based personal injury law firm of Wais, Vogelstein, Forman, Koch & Norman have decades of combined experience representing clients in all kinds of medical malpractice actions and are confident they can help you with yours. Call 410-998-3600 today to set up a free consultation with a skilled and knowledgeable medical malpractice attorney.