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D.P. v. Wrangell General Hospital5/19/2000
Not Appropriate in This Case.
The court finds an exception -- the "common knowledge exception" -- to the rule that expert testimony is needed to establish the standard of care. But that exception is incompatible with our statutory framework. Moreover, even if the common knowledge exception does not conflict with AS 09.55.550, it is inappropriate to apply it on the facts of this case.
1. The common knowledge exception is not compatible with AS 09.55.550.
The common knowledge exception has been explained as applying "when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." That is, the type of injury incurred could not have happened in the absence of negligence. But AS 09.55.550 provides, in part, that " he jury shall be . . . instructed that injury alone does not raise a presumption of the health care provider's negligence or misconduct."
The common knowledge exception therefore allows the inference of negligence to be drawn from the proved existence of injury under a broad set of possible circumstances within the knowledge and observation of the general populace. This is, however, essentially a working definition of "presumption." Since AS 09.55.550 explicitly requires the court to instruct the jury that "injury alone does not raise a presumption of . . . negligence," application of the common knowledge exception is inconsistent with Alaska law.
2. Even if generally applicable, the common knowledge exception should not be applied on the facts of this case.
There are two theories under which the hospital could have become liable to D.P. First, either Dr. McCandless or Dr. Schoettle, or both, could have been professionally negligent in prescribing D.P.'s course of treatment and care. But D.P. did not allege any failing by either of her doctors. Accordingly, the hospital and nursing staff are not liable to D.P. for shortcomings attributable to Dr. McCandless's treatment and supervision order, unless there were changed circumstances that should have alerted the nursing staff to take appropriate action. D.P. therefore cannot rely on any claim that suggests alternative methods of physical, supervisory, or narcotic restraint should have been ordered or implemented because these decisions were within the doctors' exclusive province of professional responsibility.
Second, and relevant to the common knowledge exception, D.P.'s nurses may have been professionally negligent in implementing Dr. McCandless's flexible treatment order. But, as with a doctor's professional judgments, a failure in care arising out of a nurse's discretionary actions implicates professional negligence. As the court in Sabol v. Richmond Heights General Hospital stated:
The law of medical negligence imposes on physicians engaged in the practice of medicine a duty to employ that degree of skill, care and diligence that a physician or surgeon of the same medical specialty would employ in like circumstances. Likewise, nurses are persons of knowledge and skill and must employ that degree of care and skill that a nurse of ordinary care, skill and diligence would employ in similar circumstances.
Thus, to support this theory D.P. had to provide expert testimony establishing the appropriate standard of care of a professional nurse operating under similar circumstances, unless the proper level of supervision and restraint of a psychiatric patient was peculiarly within the common knowledge of the average citizen. That it was not in this case is evident by reviewing Flowers, which makes clear the
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