Professional Negligence Law Reporter

An Arizona appellate court held that an expert medical affidavit was required in a case alleging medical negligence based on a surgeon’s failure to retrieve a surgical instrument from a patient’s body during cardiac surgery.

Ernestine Grayson underwent cardiac surgery performed by Sundeep Patel. Patel used hundreds of tiny surgical needles during the procedure, one of which was unaccounted for before the end of the surgery, despite the physician’s alleged attempt to locate the needle inside Grayson’s chest. Grayson sued Banner Health, Patel, and a physician’s assistant, alleging medical malpractice. The plaintiff alleged that the defendants had breached the standard of care by allowing a retained surgical instrument to remain in her body and that she was not required to offer medical expert testimony on the standard of care because the defendants’ negligence was obvious under res ipsa loquitur. The defendants moved to compel the plaintiff to file a preliminary expert affidavit under Ariz. Rev. Stat. §12-2603(F). Although the trial court ordered the plaintiff to submit an expert affidavit, she did not. The court dismissed her complaint.

Affirming, the appellate court noted that a medical malpractice claim requires proof of a breach of the applicable standard of care and causation. Expert testimony is needed ordinarily, except where causation is readily apparent to the fact finder or where the injury is completely unrelated to the type of care rendered. Citing case law, the court found that res ipsa loquitur applies in medical malpractice cases only when it is a matter of common knowledge that the injury would not have occurred had a defendant exercised due care.

Here, the court said, Patel’s decision to end the procedure notwithstanding the missing needle did not constitute negligence so apparent that a layperson could recognize it without expert testimony. The best medical course in such a situation was an explanation outside the ken of a lay juror, necessitating the introduction of expert testimony, the court found. Thus, the trial court had not erred in requiring the plaintiff to present an expert affidavit.

Citation: Grayson v. Banner Health, 2018 WL 5019603 (Ariz. Ct. App. Oct. 11, 2018).