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McConkey v. State9/4/2003
e, however, a layperson does not know what risks are inherent in a vasectomy. Likewise, a layperson would not know whether the cutting of the vein as occurred in this case is something that ordinarily does not occur in the absence of negligence or instead is a complication that may occur even without negligence.
Even if we assume that Plaintiff's injuries resulted from the severed vein and that the instrumentality, the scalpel, was within Defendant's exclusive control, Plaintiff produced no evidence showing that an accidental severing of a vein ordinarily does not occur in this type surgery in the absence of negligence. Plaintiff's brief argues that as the severing was accidental, negligence is implied. Plaintiff is mistaken. It may be that Defendant could have performed the vasectomy with ordinary and reasonable care in accordance with the recognized standard of acceptable professional practice and still have accidentally severed the vein. The problem for Plaintiff is that this is knowledge that a layperson, including the Commission and this Court, simply does not possess. Further, Plaintiff presented no expert proof that his injury was one which ordinarily doesn't occur in the absence of negligence. The Commission and this Court both were faced with a record in which there is neither common knowledge nor expert proof that Plaintiff's injury is one which ordinarily does not occur in the absence of negligence.
Neither this Court nor the average layperson knows whether accidentally severing a vein during a vasectomy is an injury which ordinarily does not occur in the absence of negligence. As such, this case does not fall into the common knowledge exception and expert testimony was required to establish the elements of Plaintiff's res ipsa loquitur claim, as permitted by Seavers. Plaintiff produced no expert evidence whatsoever. Plaintiff failed to carry his burden of proving the second prong of res ipsa loquitur, that the accidental severing of a vein ordinarily does not occur during this type of procedure in the absence of negligence.
Plaintiff failed to produce evidence to establish a res ipsa loquitur case. Since the Plaintiff "failed to introduce required expert testimony to establish a prima facie case of negligence even under res ipsa loquitur . . .", the Commission did not err in dismissing Plaintiff's claim. Seavers, 9 S.W.3d at 98 (Order Denying Petition To Rehear). We, therefore, affirm the Commission's dismissal of Plaintiff's claim.
Conclusion
The judgment of the Commission is affirmed, and this cause is remanded to the Commission for such further proceedings as may be required, if any, consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed against the Appellant, John McConkey, and his surety.
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