Massey v. Mercy Medical Center Redding
Filed December 22, 2009, Third District
Cite as 2009 SOS 7260

Expert Opinion Testimony, Not Required

Carl Massey (Massey) underwent bifemoral bypass surgery at the Mercy Medical Center Redding (MMCR). After the surgery, Massey was noted to be a substantial fall-risk patient. Consequently, he was placed on a fall prevention protocol which included a walker and assistance.

Ken O’Bar (O’Bar) was a one of the registered nurses assigned to look after Massey. In one occasion, Massey summoned a nurse to help him go to the bathroom. O’Bar arrived but told Massey that he would be right back. Massey got impatient and went to the bathroom alone. Subsequently, he fell and fractured his back. Massey filed a negligent case against MMCR and O’Bar. Later, the complaint was amended to allege medical negligence, battery, fraud and elder abuse.

The trial court allowed the amendment but denying claims of battery, fraud and elder abuse. On the other hand, MMCR filed a motion for nonsuit.

The trial court granted MMCR’s motion concluding that Massey failed to present expert opinion in proving O’Bar’s negligence or that his expert was unqualified to testify on the issue. On appeal with the California Appeal Court, Third District, Massey contended that the trial court erred in requiring expert opinion to establish negligence in his fall. He also claimed that it erred in denying battery and fraud as causes of action. The appeal court, in agreeing with Massey’s contention of negligence, ruled as follows:

• Common knowledge and experience may be used to determine whether a patient fell because he was insufficiently attended to by medical personnel.
• The issue of whether O’Bar’s was negligent for placing post operative "fall risk" patient on a walker and then leaving Massey unattended posed a question of common knowledge that did not require expert opinion testimony.

Regarding claims of battery and fraud, the appeal court ruled that the trial court did not err in denying them. The court ruled as follows:

• A medical act performed without a patient’s informed consent was medical negligence, not battery.
• As Massey knew he fell, complained of back pain then discussed the fall with O’Bar, he could not establish fraud as cause of action or elder abuse.