Obvious Acts of Louisiana Malpractice Do Not Require Expert Witness Evidence; Not So Obvious Acts of Louisiana Malpractice Require Expert Witness Evidence

In Pfiffner v. Correa, 9400924 (La.10/17/94), 643 So.2d 1228, 1234, the Louisiana Supreme Court recognized that expert testimony is not always required for a plaintiff to meet his/her burden of proof required by La.R.S. 9:2794 in a Lousisiana medical malpractice action where there is an “obvious act of malpractice”, but noted that, in most cases, the plaintiff will be unable to sustain his/her burden of proof without such evidence:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

As examples of obvious negligence that could be inferred by a lay person, the Pfiffner court cited instances “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body….” 643 So.2d at 1233-34. Other examples posited by the Pfiffner court include “[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary….” Id.

Where the malpractice is not so obvious, the plaintiff is cautioned that upon the defendant’s prima facie showing in a motion for summary judgment, the plaintiff is required to produce expert medical evidence sufficient to establish that he/she will be able to satisfy his/her evidentiary burden of proof at trial, i.e. competent expert witness evidence of the breach of the applicable standard of care and that the breach caused the injuries. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002, 1009-10.

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