Posted by Richard Shallcross

Under Oklahoma law, a patient wanting to establish a presumption of medical malpractice by a doctor during a surgery must show that the patient sustained an injury which was caused by something solely within the control of the doctor, and that such an injury does not ordinarily occur under the circumstances, absent negligence.

Often, a doctor will argue that the patient lacks enough evidence to even proceed to a trial. However, the Oklahoma Supreme Court case of Smith v. Hines provides an example where the patient successfully fought back against such an argument.

Knee surgery leads to thigh injury

The patient sought the care of an orthopedic surgeon, after suffering “problems” with her left knee and hearing it “pop” when she walked downstairs or squatted. The patient was diagnosed with a softening of cartilage under the kneecap, and the surgeon performed arthroscopic surgery on the knee.

Prior to the surgery, the patient’s problems were limited to her left knee and her left thigh muscles functioned normally. However, following the procedure, the patient was approached by one of the postoperative nurses who indicated that there had been an “incident” during the operation which damaged the patient’s femoral nerve in her thigh.

Immediately after the surgery, it became apparent that the patient’s left thigh muscles were not functioning normally. She saw the surgeon for eight post-surgical visits and also underwent physical therapy. Despite this, her left thigh muscle never returned to normal function and it began to atrophy-so much so that it appeared visibly smaller than her right thigh.

The patient filed suit against the surgeon. The surgeon alleged that the patient had not even presented sufficient evidence to have a day in court, and the District Court agreed. The patient appealed to the Oklahoma Supreme Court.

Strap restraint may have caused the injury

The surgeon’s argument was that the femoral nerve injury was “idiopathic”-that it occurred spontaneously or for an unknown reason-and was not caused by the negligence of anyone and occurred outside of surgery. Thus, he argued there was an entire absence of proof on a material issue that the patient had to prove to support her claim.

However, the Supreme Court noted that the patient had been seen by a board-certified neurologist after the surgery. While the neurologist generally discounted several possible theories for the injury, he did not rule out one theory: that the femoral nerve injury could have occurred as a result of a strap restraint used during the surgery.

The Supreme Court held that testimony, such as the neurologist’s, indicating that an injury could have been caused by an instrumentality or action of a third party was sufficient to avoid a pretrial judgment against the patient’s case. Where there was not an absence of proof that the surgeon’s treatment legally and actually caused the patient’s personal injuries, the issue of whether the surgeon caused the injury should be presented to the jury. The Supreme Court reversed the earlier decision of the District Court, and the patient would have her day in court.

Developing the evidence for your case

If you were injured during a surgery due to the malpractice of others, you should seek an attorney who possesses the experience and resources required to thoroughly develop the evidence, including hiring qualified medical expert witnesses, interviewing the treating doctors, and preparing your case for trial. It is important that you be represented by someone who will dedicate themselves to pursuing the compensation you deserve for your injuries.

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