Negligence Claim For Nurse’s Failure to Use Medical Device Possibly Causing Additional Spine Injury Failed For Lack of Expert Testimony

A woman entered a medical center complaining of severe back pain. She underwent surgery to fuse vertebrae using implanted hardware. At first she showed signs of recovery. Then she fell while being helped to the bathroom by a nurse. Subsequently, the patient experienced extreme pain at the surgical site.


Her surgeon noted that her alignment appeared to have changed, and suspected that one of the screws in her spine had perhaps loosened or even been pulled out. The woman underwent a second surgery during which the surgeon discovered that the hardware in her spine had loosened.


The woman sued the medical center for negligently allowing her to fall primarily because the nurse failed to use a device called a gait belt, for failing to recognize and diagnose the failure of the hardware that had been installed during the first surgery, and for its treatment of plaintiff in connection with her pain complaints following the fall. In addition to her negligence claims she claimed that the medical center's negligence caused her to suffer severe emotional distress.


During pretrial discovery the plaintiff failed to disclose her medical expert. The defendants moved for summary judgment arguing that the plaintiff’s claims failed without expert testimony. The plaintiff argued that her claims fell within the common sense exception to the expert testimony requirement because the alleged breach of medical care was so obvious that it may be understood by a layperson without the aid of expert testimony. The trial court disagreed and granted the defendant’s motion for summary judgment.


The Vermont Supreme Court upheld the trial court’s grant of summary judgment in favor of the defendant. The court reasoned that the facts and the claims of fault and causation were sufficiently complex as to be beyond the scope of common knowledge of a layperson. Generally, an expert witness would not be required for a simple case in which a nurse or other health care attendant is alleged to have negligently dropped a patient. However, given the specificity of the plaintiff’s claim, that the defendant was negligent because the nurse who assisted her move to the bathroom failed to use a specific medical device, only testimony from an expert familiar with general nursing practices and the details of the plaintiff's medical record would enable a jury to make an informed decision as to whether the defendant hospital breached its duty of care by not using a gait belt in this case.


The court concluded that even if the plaintiff could establish that the nurse negligently dropped her without relying on expert testimony, she could not, without an expert, argue to the jury that the hardware loosened as a result of the fall, or that her ongoing back pain and the need for a second surgery or any of the subsequent medical treatments were the result of the fall.


A claim of negligent infliction of emotional distress is premised on a finding of negligence. As the plaintiff’s negligence claims fail, her emotional distress claim must also fail.


See: Taylor v. Fletcher Allen Health Care, 2012 WL 5076284, 2012 VT 86 (Vt., October 19, 2012) (not designated for publication).