Improper complaint will get dismissed

Concluding that medical judgment was used and medical expert testimony was needed, the court held that the complaint sounded in medical malpractice and the trial court properly granted the defendants' motion to dismiss. On 3/27/08, the plaintiff underwent a left total parotidectomy with facial nerve preservation performed by the defendant-doctor at the defendant-hospital. The doctor's postoperative report indicated that about an hour into the operation, she noticed that plaintiff's left earlobe was "extremely warm" and "the skin on her ear was actually peeling off and blistering." The doctor also noted that the headlight she was wearing on her head was "extremely hot, and it actually had been causing a slight burn of the skin." Plaintiff sued on 3/8/10, alleging ordinary negligence. She asserted that the hospital had a duty to properly maintain its equipment, including the headlight that burned her ear, and keep it in safe working order. She alleged that the defendants also had a duty to inspect and test the equipment to ensure that it was safe for use. She claimed that the hospital failed to maintain and/or test the headlight and to ensure that it was in proper working order. Plaintiff also alleged that the hospital "did not supervise its staff to ensure that only safe and well-maintained equipment was used during surgery." The defendants successfully moved to dismiss the case without prejudice because plaintiff failed to file the required notice of intent at least 182 days before filing the complaint, and did not file an affidavit of merit. Plaintiff argued on appeal that since no medical judgment was used by the defendants, and no expert testimony was needed to show that the headlight became extremely hot and burned her ear, the complaint gave rise to an ordinary negligence claim, not a medical malpractice claim. The court noted that there was no dispute that plaintiff's alleged injury occurred in the course of a professional relationship. Further, the headlight the doctor used during the operation was a piece of surgical equipment. To analyze the reasonableness of the hospital's actions "in inspecting and testing its surgical equipment, it is necessary to know how often a hospital is required to inspect and test its equipment. This is outside the scope of the knowledge of a lay juror, as it requires knowledge of the standard of care applicable" to the hospital. Because expert testimony was necessary for that determination, the claim against the hospital sounded in medical malpractice. Further, expert testimony was needed "to explain the surgery to the jury, why the headlight was used, how long a headlight of this sort is typically used during this type of procedure, whether there are different settings for the headlight, and if so the appropriate settings for the headlight during this kind of procedure." Expert testimony was also required as to alternative causes for plaintiff's alleged injuries and whether they could have occurred absent negligence. "Such an analysis could not be performed by a lay juror based on common knowledge."