A surgeon attached a medical device to a woman’s cervical spine using screws. The screws incorrectly protruded through the opposite side of the cervical spine. The protruding screws allegedly perforated the woman’s esophagus.
The woman sued the surgeon for medical malpractice for the injuries allegedly caused by the improper installation of the medical device, a metal plate. At trial, the woman presented a mechanical engineer as an expert witness. The mechanical engineer testified that the surgeon did not install the medical device in accordance with the manufacturer’s instructions. The surgeon moved for a directed verdict with regard to causation and negligence. The circuit court granted the motion with regard to negligence. The woman appealed arguing in the alternative that either the mechanical engineer’s testimony sufficiently fulfill the expert testimony requirement for medical malpractice claims or that the doctrine of Res Ipsa Loquitor applied to the screws in that they were foreign objects incorrectly left in her body, therefore no expert testimony was required. This doctrine allows a jury to infer both negligence and causation if the injury that occurred is of the kind that more probably than not would not have occurred in the absence of negligence on the part of the defendant.
The court of appeals affirmed the lower court’s decision holding that the testimony of a mechanical engineer does not fulfill the expert testimony requirement for medical malpractice claims because a mechanical engineer cannot testify to the standard of care exercised by surgeons when affixing medical devices to patients’ spines. The court reasoned the engineer could not testify as to the degree of care, skill, and diligence a surgeon would use to install the plate.
Additionally, the screws were not foreign objects mistakenly left in the woman’s body such that a jury could find negligence without expert testimony establishing the standard of care. Res Ipsa Loquitor did not apply where the causal link between the alleged negligence and the injury was only that the injury rarely occurs following an operation.
See: Trees v. Ordonez, 250 Or.App. 229, 2012 WL 1950393 (Or. App., May 31, 2012).