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Common Knowledge Exception to Expert Affidavit Applied for Latex Allergy


A woman was admitted to the hospital for an uvulopalatopharyngoplasy, a procedure used to treat sleep apnea. Prior to the surgery, the woman’s latex allergy was disclosed to medical personnel on her forms for “Pre-Anesthesia Evaluation” and “Consent to Operation, Anesthetic and Other Medical Services.” Prior to surgery, the hospital issued her a wrist band that identified the latex allergy. During the surgery, she suffered an allergic reaction that required her to be treated in the Intensive Care Unit (“ICU”). The woman attributed the reaction to her latex allergy. 

 

The woman filed a Notice of Intent to File Suit (“NOI”) and a Summons and Complaint, in which she asserted a medical malpractice claim against the hospital, the medical practice, the operating physician, the anesthesiologist, and other unnamed medical personnel. She did not file an expert witness affidavit with her NOI because it was her good faith belief that her allergic reaction to latex was within the ambit of common knowledge and experience, so that no special learning was needed to evaluate the conduct of the defendants.

 

The Kershaw County Circuit Court granted defendants' motion to dismiss for failure to file an expert witness affidavit with her NOI. The woman appealed to the Court of Appeals, and the South Carolina Supreme Court certified the appeal.

 

The Supreme Court of South Carolina reversed and remanded. The court held that the fact that exposing a patient with a known allergy to latex could cause an allergic reaction was common knowledge, and thus the woman did not need to file a prelitigation expert witness affidavit.

 

A plaintiff in a medical malpractice case must establish by expert testimony both the standard of care and the defendant's failure to conform to the required standard, unless the subject matter is of common knowledge or experience so that no special learning is needed to evaluate the defendant's conduct. S.C. Code Ann. § 15-36-100(C)(2) does not require an affidavit when the alleged negligent act “lies within the ambit of common knowledge and experience.” The application of the common knowledge exception depends on the particular facts of the case.

 

When expert testimony is not required in a medical malpractice case due to the common knowledge exception, the plaintiff must offer evidence that rises above mere speculation or conjecture. The court found that the woman's allegation that the medical defendants' negligently exposed her to latex when she had a known allergy, and such exposure could result in an allergic reaction, was a matter within common knowledge or experience, so that no special learning was needed to evaluate the medical defendants' conduct at the pre-litigation stage. The court concluded that the woman was entitled to invoke the statutory common knowledge exception to the expert opinion requirement in her prelitigation filings and did not need to file an expert witness affidavit with her NOI.

 

The Supreme Court of South Carolina reversed the trial court’s grant of the healthcare providers’ motion to dismiss.

 

See: Brouwer v. Sisters of Charity Providence Hospitals, 2014 WL 3844059 (S.C., August 06, 2014) (not designated for publication). 

 

 

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