Appeals panel reinstates med-mal case

February 9, 2015

A trial court erred in granting summary judgment to a hospital and a doctor who performed a hysterectomy during which an arm board became unattached. After the patient’s arm dangled for much of the surgery, she was diagnosed with nerve damage in her arm.

A medical review panel determined that neither defendant had failed to meet the applicable standard of care in Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D., 71A04-1405-CT-246. After Thomson proceeded with a lawsuit, St. Joseph Circuit Judge Michael S. Gotsch granted summary judgment.
“We find that, given the nature of this case, Thomson was not required to present expert testimony to rebut the panel’s conclusion as to either defendant’s failure to meet the standard of care. We also find that the expert testimony Thomson presented was sufficient to rebut the panel’s conclusion as to causation. Accordingly, we reverse and remand for further proceedings,” Judge John Baker wrote for the panel.

Baker cited prior caselaw allowing the inference of negligence upon a showing that the injuring instrumentality is under the management or exclusive control of defendants and that the accident is avoidable with proper care. A doctor noticed the detached arm board during the operation and corrected it, but not until a little more than halfway through the two-hour procedure.

 “(I)t suffices to say that common sense and experience lead us to conclude that an arm board should not become detached leaving a patient’s arm dangling for such a period of time that the patient suffers nerve injury,” Baker wrote.



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