Elements of Proof - Breach of Duty

• Unlike ordinary negligence cases, proving that a health care professional breached his or her duty of care involves showing what a reasonably competent health care professional would have done in a similar situation.  Consequently, expert witnesses, buttressed by medical literature, are usually needed to show a deviation or breach of the standard of care. 
• Although the law in Kentucky is such that any licensed medical doctor can provide an opinion concerning any field of medical practice, the experts needed in a medical malpractice case must be from the same or closely related field of the medical practice of the defendant sued by the plaintiff.
• Informed Consent:  Extent to which physician must disclose risks and hazards of proposed medical procedure, for purposes of determining whether patient consented to treatment, must be evaluated in terms of what the physician knew or should have known at the time he recommended the treatment to patient.  Holton v. Pfingst, Ky. App., 534 S.W.2d 786 (1976).
• CASES:
  • Rogers v. Kasdan, Ky., 612 S.W.2d 133 (1981)
    Suggested jury instruction regarding breach of duty:
    "It was the duty of the defendant Humana and its employees to exercise toward Mrs. Rogers that degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances. If you are satisfied from the evidence that they failed to comply with that duty and that such failure on their part was a substantial factor in causing the death of Mrs. Rogers, you will find for the plaintiff against Humana; otherwise you will find for Humana."
  • Paintsville Hospital v. Rose, Ky., 683 S.W.2d 255 (1985)
    A hospital could be held liable on principles of ostensible agency or apparent authority for negligence of physician who furnished treatment to patient in emergency room which was provided by hospital and open to public, notwithstanding that physician was not actually employed by hospital.
  • Holton v. Pfingst, Ky. App., 534 S.W.2d 786 (1976)
    Ophthalmologist was not liable for the patient's loss of the sight of one eye which resulted from an unsuccessful, but properly performed, surgical procedure.
  • Mitchell v. Hadl, Ky., 816 S.W.2d 183 (1991)
    General surgeon who informed patient's family before receiving biopsy results that patient had carcinoma of pancreas with metastatic disease to liver and would die within three to six months, and who reiterated diagnosis even after receiving negative biopsy report, did not breach duty to patient, given that surgeon's diagnosis was based upon his examination of patient's internal organs, surgeon was under duty to fully disclose all reasonably held medical opinions about patient's condition, and no evidence indicated surgeon's opinion fell below standard of reasonable competence.
  • Duetsch v. Shein, Ky., 597 S.W.2d 141 (1980)
    Necessary expert testimony to establish that doctor failed to conform to required standard of care may consist of admissions by defendant doctor.

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