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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

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  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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