MARTIN MELTON v. JAMES W. MIDDLETON, M.D.; AND FAMILY MEDICAL CENTER OF HART COUNTY, PSC
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RENDERED: December 17, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002651-MR
MARTIN MELTON
v.
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE LARRY RAIKES, JUDGE
ACTION NO. 95-CI-00264
JAMES W. MIDDLETON, M.D.;
AND FAMILY MEDICAL CENTER
OF HART COUNTY, PSC
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GARDNER AND MILLER, JUDGES.
EMBERTON, JUDGE: Martin Melton appeals the summary dismissal of
his medical negligence claim resulting from the alleged failure
to properly diagnose and treat his ruptured appendix.
In
granting the appellee doctor’s motion for summary judgment, the
trial court concluded, that because the claim does not fall
within the ambit of the doctrine of res ipsa loquitur, expert
testimony was required to defeat the motion.
We agree and
affirm.
Briefly stated, after having been examined by a general
surgeon in the emergency room of Caverna Memorial Hospital on
January 21, 1995, with complaints of abdominal pain, appellant
was referred to the care of his family physician, Dr. James
Middleton, who admitted him to the hospital for observation.
Because physical examinations and tests revealed no
abnormalities, Dr. Middleton ordered that appellant remain
hospitalized to again be evaluated by a general surgeon.
On
January 23, 1995, Dr. Ronilo Diaz removed appellant’s acutely
inflamed appendix.
Appellant instituted the instant action alleging
medical malpractice on January 3, 1996.
After answering, Dr.
Middleton filed interrogatories on February 2, 1996, requesting
the identity of expert witnesses supporting his allegations and
the substance of facts to which the experts were expected to
testify.
On May 15, 1996, appellant responded stating that the
identity of experts was “undetermined at this time, will
supplement answers.”
On June 18, 1997, Dr. Middleton moved for summary
judgment supported by the affidavit of Dr. Diaz, appellant’s
treating surgeon.
In his affidavit, Dr. Diaz stated that on the
basis of his review of appellant’s medical records, it was his
belief that Dr. Middleton had acted “as a reasonably competent
physician in treating Mr. Melton.”
Thereafter, the trial court
granted appellant until August 4, 1997, to respond to the motion.
When appellant failed to respond by that date, the trial court
entered summary judgment dismissing the complaint by order dated
August 5, 1997.
At appellant’s request, this order was
subsequently vacated by the trial court in order to allow
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appellant to submit a response.
In that response, appellant
argued that expert testimony was not required to support his
claim because the negligence in question falls under the doctrine
of res ipsa loquitur.
On September 19, 1997, the trial court again entered
summary judgment dismissing the complaint, stating the timeliness
of a diagnosis of acute appendicitis “does not fall within the
parameter of the common knowledge or experience possessed by lay
jurors.”
Thus, the trial court, reasoned, expert testimony was
required to counter Dr. Diaz’s affidavit.
We find no error in
the trial court’s analysis.
The doctrine of res ipsa loquitur upon which appellant
relies presupposes a situation in which a layman would be
competent, on the basis of common knowledge and experience, to
conclude that such things do not happen where a patient has been
afforded proper skill and care.
S.W.2d 652 (1992).
Perkins v. Haulsaden, Ky., 828
Notable examples of the type of negligence to
which the doctrine might be properly applied are cases in which a
sponge is left in the patient following a surgical procedure;
where the wrong limb is amputated; where a bone is broken during
a therapy treatment; or the dentist’s drill slips off a tooth.
Common sense dictates that such things normally do not occur in
the absence of medical negligence.
Moreover, Professor Prosser,
in Prosser and Keeton on Torts, Section 39 (5th ed. 1984),
cautions that the existence of an undesirable result alone is an
insufficient basis for invocation of the doctrine of res ipsa.
Ordinarily, evidence of a more technical character is required to
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supply the requisite standard of care, as well as to support a
claim that the standard has been breached.
Baylis v. Lourdes
Hospital, Inc., Ky., 805 S.W.2d 122 (1991).
Viewing appellant’s claims in light of this authority,
we completely agree with the trial court’s conclusion that it was
incumbent upon appellant to counter Dr. Diaz’s affidavit with
expert testimony supporting his theory of the case.
Furthermore,
it is apparent from the record that the trial court afforded
appellant ample opportunity to produce the requisite evidence.
The judgment of the Hart Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. William Bailey, Jr.
Elizabethtown, Kentucky
Paul A. Dzenitis
Louisville, Kentucky
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