In Allen v. United States, the government received summary judgment in North Dakota District Court in a medical malpractice case because they failed to retain an expert to offer opinions as to causation.
Plaintiff received transfusions at the Grand Forks Air Force Base Hospital in South Dakota over ten years ago. In 2005, while attempting to obtain life insurance, the plaintiff was diagnosed with Hepatitis C virus. Plaintiff claimed the government committed medical malpractice for failing to screen the blood she received and for failing to timely diagnose and treat her for the Hepatitis C virus.
Because expert testimony is required to support a prima facie case of medical malpractice in a case like this, the North Dakota court found that plaintiff’s failure to provide any expert evidence to prove her injuries and the cause of her injuries. The court called the cause of her Hepatitis C mere speculation.
Plaintiff’s medical malpractice lawyer’s position appeared to be “C’mon, how else did she get Hepatitis C,” relying on case law that we also have here in Maryland that expert evidence is not always required to support a medical malpractice claim. But the exception applies to obvious cases within the common knowledge of a jury. A good example is a doctor operating on the wrong leg – everyone can get that, you do not need an expert. However, as this court made clear, the transmission, diagnosis, treatment, and injuries associated with a blood borne virus does not lie within a jury’s comprehension as a matter of common knowledge. It is hard to quarrel with this ruling.