March 29, 2008
King on the Common Knowledge Exception
Joseph King (Tennessee) has published an interesting article: The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51 (2008). In the piece, King wrestles with one of tort law's great shortcomings, uncertainty, in the context of the common knowledge exception.
Pursuant to the exception, a plaintiff does not need to use an expert to establish the standard of care in a med mal case if the subject matter of the allegedly unreasonable conduct is within the common knowledge of people without medical training. Although King supports the doctrine in theory, he argues that its application has been so unpredictable as to arouse rule-of-law concerns. The challenge is to provide sufficient guidance to judges, lawyers, and litigants while retaining enough flexibility to cover an array of factual scenarios.
King's solution is to construct two alternative preconditions, the presence of one or the other being necessary, but not sufficient, for a court to invoke the common knowledge exception:
Either the specific conduct that allegedly constituted negligence was of such a nature that not only could an unlicensed layperson legally perform it without violating or offending applicable medical or health care licensure statutes or duly authorized regulations governing the practice of the health care professions, but also that such an unlicensed layperson would ordinarily be deemed competent and foreseeably expected to routinely perform such conduct; or, the specific decision making by the health care provider that allegedly constituted negligent conduct that caused the injury did not involve the exercise of uniquely professional medical skills, a deliberate balancing of medical risks and benefits, or the exercise of therapeutic judgment.
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The per se dismissal of all med mal cases requiring an expert would solve its problems. It would end weak cases, physician complaints about the oppression by the lawyer. It would upgrade the reputation of the court. The court has no business settling medical controversies. Any case with opposing experts has scientific controversy beyond the scope of the rhetorical tools of a trial. Only new scientific data can resolve such a controversy. It would end the theater of trial.
So, it is within jury knowledge to not give a blood transfusion to the wrong named patient, to not amputate the healthy leg, and to not give a treatment at 10 times the harmful dose. All controversy over.
That rule change would decrease the incomes of all parties, but direct more insurance money to the plaintiff. An intermediate rule would dismiss per se any claim where an opposing defense expert can be found to certify the case has a defense scientific argument with merit. The end of medmal would mean the end of defensive medicine, an extra 10% in the pockets of health providers for doing nothing of value. Only the public is innocent and loses in this current farce.
Will never happen.
Posted by: Supremacy Claus | Mar 29, 2008 6:12:53 AM