Saturday, March 29, 2008
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.