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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910, 636 P.2d 215 (1981).

This case addresses the following issue:

Do all mistakes by a surgeon constitute medical malpractice?

This case dealt with a situation where the surgeon admits he made a mistake, but challenges that his mistake was significant enough to create liability in a medical malpractice action. Id. at 488. In legal terms, the doctor argued that his failure to take an x-ray before beginning surgery was not so careless as to be a deviation for the standard of care to which a doctor is held. Id. The court, after reviewing the testimony of another doctor, agreed, and found that the Defendant was not negligent. Id. at 492.

Plaintiff was rushed to the hospital after his left arm was severely injured when a power tool malfunctioned. Id. at 488. Defendant, an orthopedic surgeon, briefly examined Plaintiff’s arm. Id. He found that a tendon was completely severed and a nerve was nearly severed—basically, the injury was extremely severe and painful for Plaintiff. Id. Defendant had Plaintiff immediately prepped for surgery, where Defendant was able to successfully reattach the tendon and nerve. Id. Plaintiff began experiencing numbness and weakness in his left wrist, leading him to visit his primary care physician. Id. That doctor performed an x-ray, which revealed a very thin, small piece of metal had been imbedded in Plaintiff’s forearm. Id. Plaintiff had surgery to have the piece of metal removed, as well as a growth that had developed on his nerve from friction caused by the small piece of metal. Id. Plaintiff filed suit alleging Defendant should have taken an x-ray prior to surgery, and failing to do so was negligent. Id.

In a malpractice action, the plaintiff must show that the doctor acted without the “reasonable degree of learning and skill ordinarily possessed by members of the profession.” Id. at 489. When a doctor fails to meet this standard of care, and his failure causes injury, he is liable for medical malpractice-or professional negligence. Id. Because exactly what the “reasonable standard of care” for a doctor is beyond the knowledge of non-medically trained individual, expert witnesses must establish that level of care. Id. at 490.

In this case, Plaintiff had been unable to find a doctor that would agree that Defendant’s failure to take an x-ray under these circumstances was a breach of such a duty. Id. Plaintiff had instead argued that any individual would know failure to check for such a shard is careless. Id. This is true when a surgeon leaves behind a surgical sponge, surgical instrument, or gauze is left inside an individual after surgery. Id. However, this was not analogous to Plaintiff’s situation, where the metal shard was completely unknown to Defendant before, during, and after the surgery. Id. Instead, there was no indication that Defendant should have even expected the shard to be there, and that the under the circumstances, it may have been more detrimental to delay surgery for an x-ray that wasn’t likely to show anything. Id.

The court also noted a common folly that occurs with malpractice cases: simply because a further injury occurs does not mean that the doctor’s mistake breached the standard of care. Id. Sometimes, as here, a mistake is made, but it isn’t such a big mistake that the law will impose liability. Id. Thus, judgment for Defendant was held to be proper. Id.

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