 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Simmons v. Kolken9/22/2003
Delores Simmons appeals the dismissal of her medical malpractice lawsuit against Dr. Richard Van Kolken and Northwest Radiologists, Inc. Simmons contends the trial court erred in dismissing the medical malpractice action on summary judgment for lack of supporting competent evidence. We disagree, and affirm.
FACTS
On January 19, 1999, Simmons went to Northwest Radiologists, Inc., P.S., where she had a right breast stereotactic biopsy. During the procedure performed by Dr. Van Kolken, the end of the biopsy instrument broke off and became lodged inside Simmons' breast. Dr. Van Kolken attempted to retrieve the small metallic tip. At some point, Dr, Van Kolken abandoned his efforts and told Simmons what had happened. Despite Dr. Van Kolken's assurances that her health was not at risk, Simmons remained concerned about possible medical complications arising from the object being left inside her breast. She eventually had the tiny metal tip of the biopsy instrument surgically removed from her breast.
Simmons sued Dr. Van Kolken and Northwest Radiologists, Inc., for medical malpractice. The defendants moved for summary judgment and submitted expert testimony establishing that Dr. Van Kolken complied with the applicable standard of care and the biopsy instrument fell apart solely because it was defective. The defendants argued that Simmons' claims of medical malpractice should be dismissed because she lacked the requisite testimony of a qualified expert to support her claims. Simmons responded to the motion by submitting her own declaration and a declaration from her sister. In their declarations, they both alleged that Dr. Van Kolken told them that the instrument he used in the biopsy had previously been recalled and that he wanted to continue to use the ones he had left. Simmons, however, offered no expert medical evidence to support her claims. Following a hearing, the trial court granted summary judgment in favor of the defendants and against Simmons. A subsequent motion for reconsideration was denied. This appeal followed.
DECISION
We are asked to consider whether the trial court erred in dismissing Simmons' medical malpractice claims against Dr. Van Kolken and Northwest Radiologists. Applying the standard used for review of an order granting summary judgment, we conclude the evidence submitted by Simmons was insufficient to defeat the defendants' motion for summary judgment.
In order to recover damages for negligent medical treatment, the plaintiff must establish that the health care provider did not comply with the accepted standard of care. To defeat a motion for summary judgment in a medical negligence case, the plaintiff must produce competent medical expert testimony establishing that the injury was proximately caused by the doctor's failure to comply with the applicable standard of care. A limited exception to the requirement of expert testimony exists where the determination of negligence does not require technical medical expertise, such as where a health care provider amputates the wrong limb or inadvertently leaves a foreign object in a patient's body following surgery.
Simmons contends that she did not have to present expert testimony as to Dr. Van Kolken's actions or damages caused by his conduct 'because ordinary lay persons are capable of observing and describing the negligent actions of Van Kolken without medical training.' According to Simmons, 'expert testimony is not required by a lay person to understand that it is negligent to realize a foreign object is left in a patient, attempt for over two hours to remove the object, and then when unsuccessful, simply give up and state that leaving the object in
Page 1 2 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|