A woman who had to undergo a second surgery to remove a needle left behind after a knee replacement hired the wrong expert to testify her radiologists and a surgical assistant were negligent for failing to find the missing piece of metal, the Kentucky Supreme Court ruled.
Reversing an appellate decision in favor of the plaintiff, the state’s high court said a trial judge was correct to dismiss claims against the medical professionals and Norton Women’s and Children’s Hospital due to the “glaring omission” of an expert qualified to testify about the standard of care for radiologists.
The court’s majority also rejected, over a lengthy dissent, the appellate decision holding the doctrine of res ipsa loquitur – “the thing speaks for itself” – was sufficient to place the question of negligence before a jury.
The appeals court ruled “any layman” would know losing a needle in a patient’s body was negligent.
“We are not so convinced,” the Supreme Court said in a Sept. 24 decision by Justice Michelle Keller.
Dr. Sean Griffin performed knee replacement surgery on Deborah Lloyd in December 2019 at. During the procedure, his assistant noticed a suturing needle was missing from its holder and told Griffin and the rest of the surgical team.
When they couldn’t find the needle, Griffin ordered an X-ray. But the radiologist couldn’t find the needle that way either. Griffin decided not to reopen the patient’s incision to look for it again or tell Lloyd about the missing needle.
The radiologist failed to find the needle after a second X-ray, but doctors saw it after a third X-ray about a month later and removed the needle in February 2020. Lloyd ultimately had to take antibiotics and undergo a third surgery to correct the effects of the foreign body in her tissue. She sued the doctors and Norton in September 2020.
Griffin settled, leaving the surgical assistant, the radiologists and North as defendants. Lloyd hired Dr. Stanley Dysart, an orthopedic surgeon, as her expert witness. He said he was more qualified than a radiologist to read orthopedic surgery X-rays, but he admitted under cross-examination he wasn’t qualified to testify about the standard of care for radiologists.
The trial judge struck most of the expert’s testimony about the surgical assistant, which included criticism of her for failing to open sutures to find the needle but also a statement it wasn’t lack of care that led the need to fall out of the suture holder.
“It’s happened to me; going to happen to her,” Dysart testified. “It’ll happen to her again.”
When asked if he had any criticism of the assistant, he said “she’s fine.”
Without any evidence the defendants violated the standard of care, the trial judge dismissed the case. But the appeals court reversed, ruling the doctrine of res ipsa loquitur created questions for a jury to decide. The Kentucky Supreme Court reversed again, ruling there was no evidence the assistant or the radiologists were negligent.
Res ipsa requires the defendant to have “exclusive control” over the thing that causes injury, but the assistant had no control over the needle after it was dislodged from its holder, the court said. Neither did she have authority to order X-rays, open sutures or do anything else other than visually attempt to find it, the court said.
Lloyd’s expert also couldn’t provide evidence the radiologists were at fault for failing to find the needle, the court continued.
“No party disputes that, while Dr. Dysart’s testimony does critique the Radiologists and allege that they have fallen short of their standard of care, his testimony does not name what that standard of care for radiologists is,” the court said. “Different medical specialties have different standards of care, and one will only be held to the standard of care in the specialty in which they are trained.”
Justice Kelly Thompson dissented, saying the doctrine of res ipsa loquitur “shifts the burden of proof to all members of the surgical team to prove that they do not share responsibility for the retained object.” Courts have abandoned the idea of the surgeon as “captain of the ship” responsible for whatever happens, he wrote.
“The issue as to who is ultimately responsible for Deborah Lloyd’s injury and damages and their comparative negligence must be resolved by a jury,” Thompson wrote.
