Legal Background

In order to determine whether the claim was professional negligence or ordinary negligence, courts look at whether the claim involves “medical judgment, diagnosis, or treatment.” If the jury can only evaluate the plaintiff’s claim after being presented with the standards of care by a medical expert, then it is a professional negligence claim. If, on the other hand, the reasonableness of the health care provider’s actions can be evaluated by jurors on the basis of their common knowledge and experience, then the claim is likely based in ordinary negligence.

The court looked at other cases, including one where expert testimony was not necessary to show professional negligence when a pharmacist filled a prescription with the wrong drug. Other “common knowledge” exceptions occurred in cases where a dentist removed the wrong tooth, and a doctor operated on a wrong body part. These errors are so extreme and blatant that an expert’s affidavit is not necessary.

In this case, the appellate court agreed with the plaintiff that Nurse D’s administration of morphine that was not prescribed to Mrs M does not raise any questions of medical judgment beyond the realm of common knowledge or experience. Nurse D “used no professional judgment in administering the morphine – she simply gave Mrs M the wrong drug because she had mixed up the prescriptions,” said the court in its decision. Thus, said the court, although administering medication constitutes medical treatment, “an allegation that a health care professional administered a patient’s medicine to a different patient is an allegation of ordinary negligence that requires no expert testimony to assess.” The court overturned the dismissal of this part of the case.

However, as to the other claim that the nursing home failed to monitor and subsequently treat Mrs M after the morphine administration, the appeals court ultimately held that this did constitute professional negligence that would require a medical expert’s affidavit.


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The court concluded with the following: “The mistaken administration of another patient’s morphine in this case constitutes ordinary negligence that a lay juror could assess without expert testimony, and a claim predicated solely upon such ordinary negligence is not subject to the medical expert affidavit requirement. The district court therefore erred in granting summary judgment as to this allegation. However, the district court correctly granted summary judgment as to the remaining allegations regarding the failure to monitor, as those allegations challenge whether the health care provider’s medical judgment violated the established duty of care and require expert testimony to support. Accordingly, we affirm in part, reverse in part, and remand this matter to the district court for further proceedings consistent with this opinion.”

Protecting Yourself

The nurse in this case made a mistake but reacted appropriately upon realizing it.

This case, however, illustrates that cases of obvious error (wrong medication given to a patient, wrong limb removed, wrong organ operated on) may be viewed as ordinary negligence that a jury could understand without the need for a medical expert.

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