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Expert Required for Failure to Perform Surgery on Finger


A man was injured in a motor vehicle accident. The man presented to the emergency room (ER) where staff took note of the man’s injuries. Specifically, radiological studies revealed that the man had suffered a dislocation of the third metacarpophalangeal (MCP) joint (the joint between the metacarpal bone of the hand and the first bone of the middle finger) with a type II fracture (a common fracture which passes across most of the growth plate and up through the wide portion of the bone where growth occurs), a fracture dislocation at the base of the fourth metacarpal (the bone in the hand extending down from the ring finger), and a dislocation of the fifth carpometacarpal joint (the joint on the wrist end of the metacarpal bone of the hand extending down from the pinky finger). An ER physician reduced the dislocation of the man’s right ring finger and applied a splint to the man’s right hand, wrist, and forearm.

 

The following day, the man underwent a surgical procedure at an orthopedic surgery center. The orthopedic surgeon performed a number of procedures on the man’s right hand, wrist, and forearm. The orthopedic surgeon did not perform a procedure on the man’s middle finger. At the end of the surgery, the orthopedic surgeon splinted the man’s middle finger in extension to reduce the MCP joint.

 

After surgery, several medical professionals, including occupational and physical therapists, expressed concerned that the man’s right middle finger was swelling and lacked range of motion. Approximately one month after the original surgery, the same orthopedic surgeon performed an additional surgery on the man’s right hand. The orthopedic surgeon completed an open reduction and pinning on the MCP joint of the man’s middle finger.

 

The man sued the orthopedic surgeon and the orthopedic surgeon’s practice group for medical negligence. The complaint alleged that the orthopedic surgeon and the practice group provided improper medical care relating to his right middle finger. Specifically, the complaint argued that the orthopedic surgeon forgot to fix the injuries to the man’s middle finger during the first surgery, making this an obvious occurrence not requiring an expert affidavit.

 

The orthopedic surgeon and the practice group filed a motion to dismiss. The motion argued that the man failed to provide an admissible expert opinion within three months of filing the complaint, as required by statute. The orthopedic surgeon explained that, because the middle finger was not fully dislocated, the orthopedic surgeon splinted the middle finger in extension to reduce the MCP joint.

 

The District Court, South Central Judicial District, denied the motion. The trial court concluded that the facts, as alleged and presented at that time, supported the man’s claims that the alleged medical negligence of the orthopedic surgeon to fail to address the diagnosed fractures in the man’s third, middle, or long finger of the right hand during surgery was an obvious occurrence.

 

The Supreme Court of North Dakota reversed. The court held that the orthopedic surgeon’s decision to splint the man’s broken middle finger, rather than perform surgery, was a matter outside the plain knowledge of a layperson, such that an expert affidavit was required.

 

The orthopedic surgeon’s decision to splint the man’s broken middle finger, rather than perform surgery, was a matter outside the plain knowledge of a layperson, such that an expert affidavit was required. The obvious occurrence exception did not apply to excuse the man’s failure to comply with the expert affidavit requirement. Occurrences of alleged professional negligence during technical surgical procedures typically fall outside the obvious occurrence exception to the expert affidavit requirement.

 

The Supreme Court of North Dakota reversed the trial court’s denial of the motion to dismiss filed by the orthopedic surgeon and his practice group.

 

See: Pierce v. Anderson, 2018 WL 2671488 (N.D., June 5, 2018) (not designated for publication).

 

 

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