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McCarty v. Boswell2/21/2003
rt concluded that the necessary expert testimony could be found in the "admissions the defendant doctor." The Supreme Court further concluded that Dr. Hausladen's admissions as to the appropriate standard of care coupled with the additional medical testimony of subsequent treating physicians, "was sufficient to present a case of res ipsa loquitur, or circumstantial evidence, from which the jury could infer negligence..."
The McCartys rely on Perkins for their claim that a jury could reasonably infer negligence from Dr. Boswell's own "admissions." This argument appears to be based upon the McCartys' contention that that the statements contained in the addendum to Dr. Boswell's original report constituted some sort of admission on his part. The McCartys further argue that the jury can infer negligence from the fact that Dr. Boswell retracted his original diagnosis. Since we do not believe the statements contained in the addendum issued by Dr. Boswell constitute an "admission," we reject this argument.
The addendum prepared by Dr. Boswell on March 9, 1994, simply discussed the varying opinions of the seven pathologists who reviewed Orville's pathology slides. Dr. Boswell noted that most of the pathologists who reviewed the slides "feel that this is a difficult case to interpret." Dr. Boswell further commented that "the majority (4) feel this is an inflammatory process with (3) who feel that a malignant neoplasm is a definite diagnostic possibility." Although, Dr. Boswell stated that after reviewing the case extensively, he was now "unsure as to the correct diagnosis," and that his final diagnosis was therefore, "inconclusive," he also suggested that the submandibular masses disappeared as a result of Orville's chemotherapy treatment. Thus, Dr. Boswell never stated that his initial diagnosis was wrong. Moreover, Dr. Boswell never admitted any wrongdoing nor did he ever state that his initial diagnosis was incorrect. He simply acknowledged that there was room for reasonable disagreement as to the correct diagnosis. These statements alone are insufficient to invoke the doctrine of res ipsa loquitur.
As for the McCartys' argument that the alleged negligence that occurred in this case is of the kind that "any layman is competent to pass judgment ," we are not convinced that this case is one in which a normal person could conclude from common experience that the pathology slides should have been interpreted differently. Moreover, none of the pathologists who reviewed the slides indicated that Dr. Boswell's interpretation of the slides fell below the appropriate standard of care. In addition, the McCartys have failed to cite any Kentucky cases in which the doctrine of resipsa loquitur was applied to a mistake in diagnosis. We are of the opinion that the doctrine does not apply in such situations. Accordingly, summary judgment was appropriate as the McCartys have completely failed to demonstrate the existence of a genuine issue as to any material fact.
Based upon the foregoing reasons, the order of the Floyd Circuit Court granting summary judgment in favor of the appellees and dismissing the McCartys' medical malpractice action is affirmed.
ALL CONCUR.
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