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Sunburned man gets no relief

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The Indiana Court of Appeals has ruled that a badly sunburned patient failed to meet the burden of res ipsa loquitur in a medical malpractice lawsuit against his dermatologist.  

Kenneth W. Smith was a patient of Dr. Alan R. Gilbert, a dermatologist at Dermatology Associates of Fort Wayne PC, a/k/a Dermatology & Laser Surgery Association of Fort Wayne PC, where he received Psoralen UVA treatments for his psoriasis. For a 10-year period starting in December 1994, he had 147 treatments which involved him taking the drug Psoralen and then being exposed to UVA light.

 After his last laser treatment on Dec. 8, 2004, he returned to work but became ill and eventually went to the emergency room. From there, he was admitted to the Burn Unit of St. Joseph Hospital in Fort Wayne with first and second degree burns to about 84 percent of his body.

On Feb. 6, 2009, Smith and his wife filed a complaint against the doctor’s office. They alleged that the negligence of the medical personnel or machine malfunction created a res ipsa loquitur inference that an act of malpractice may have occurred.

The trial court concluded the Smiths had failed to establish that the dermatology practice had exclusive control of the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred without negligence. Also, the court found that the doctrine of res ipsa loquitur was inapplicable and that the Smiths had failed to meet their burden of establishing by direct or circumstantial evidence that DLSA breached its duty to care.

The Smiths appealed claiming the trial court erred by concluding that they had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur.

In affirming the trial court’s decision, the Indiana Court of Appeals found in Kenneth W. Smith and Deb-Anne Smith vs. Dermatology Associates of Fort Wayne, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C., 02A03-1201-CT-41, that the Smiths were unable to meet the first element of res ipsa loquitur, that the medical office had exclusive control of the PUVA machine. In addition, the couple was unable to establish the second element of the doctrine that his injuries would not have occurred without negligence.

 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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