A rare tie in the Kansas Supreme Court means a Stormont Vail Health patient will be allowed to continue her lawsuit against the Topeka hospital and a doctor who removed the wrong organ.

When Jeannine Williams-Davidson had a surgery to remove her adrenal gland at Stormont Vail, physician Nason Lui removed part of her pancreas instead.

The patient sued, but courts have been divided on whether you need to be a medical expert to decide that a doctor violated the standard of care by cutting out a chunk of a healthy organ while leaving untouched the one with a noncancerous tumor.

Medical expert not needed when common sense is enough

Kansas law typically requires plaintiffs to offer expert testimony in medical malpractice cases because jurors generally are not experts in medicine. But there is a common sense and knowledge exception that applies when a patient’s care was “so obviously lacking” and “the results are so bad” that it would be apparent to an average person.

Douglas County District Court previously ruled against the patient because she didn’t have a medical expert. That dismissed the claims without having a jury trial.

A divided three-judge panel of the Kansas Court of Appeals disagreed and reversed the decision in July.

“When the surgeon misidentifies and removes all or part of a healthy organ, leaving the organ the surgeon intended to operate on untouched, the common-knowledge exception alleviates the need for expert testimony to establish the standard of care or a breach of that standard,” wrote judges Amy Fellows Cline and Jacy J. Hurst.

Judge David E. Bruns dissented, arguing it shouldn’t apply because it was inadvertent.

“The average lay person would not have the knowledge necessary to determine whether this mistake rose to the level of a breach of the appropriate standard of care by a surgeon,” Bruns wrote. “In other words, I do not believe it is patently obvious that the bad result occurred due to a breach of reasonable care.”

The doctor and hospital then appealed to the Supreme Court.

More: Kansas court rules Stormont Vail doctor who removed the wrong organ can still be sued

Kansas Supreme Court tied

Ties are not common at the Kansas Supreme Court, which has seven justices. But it has happened in the past, at least as recently as two years ago, when a justice recused himself from a case that he had been an attorney on before joining the bench.

When a tie happens at an appellate court, the lower court ruling stands.

In this ruling, Justice Eric Rosen recused himself and the other six were equally divided. Justices Dan Biles, K.J. Wall and Melissa Taylor Standridge would have affirmed the Kansas Court of Appeals reversal of the Douglas County District Court. Chief Justice Marla Luckert and justices Caleb Stegall and Evelyn Wilson would have reversed the appeals court and sided with the district court.

Friday’s ruling didn’t include any legal reasoning from the two camps.

Attorneys argue over common knowledge

Prior to Friday’s ruling, the high court held oral arguments on Jan. 31.

Lui and Stormont Vail were represented by Cynthia J. Sheppeard, of Topeka law firm Goodell, Stratton, Edmonds & Palmer.

Sheppeard said that Lui and a second doctor who assisted on the laparoscopic surgery him would “testify that what happened sometimes happens, even with the best of care.” She said he admits he made a mistake, but a mistake doesn’t necessarily mean it was negligence.

“They were so close together, and the adrenal and the pancreas looked so much alike, and there was blood in the field, he’d been removing the adhesions,” she said. “Between the two of them, they thought they were removing the adrenal.”

Williams-Davidson and her husband, Jeffrey Davidson, were represented by Jason Belveal, of Belveal Law Office in Holton.

“I do believe that if you say to a person, I went in for surgery and my doctor left behind the diseased organ, cut out a healthy organ — or a big part of a healthy organ — any person off the street is going to go, ‘Yikes, something went wrong on that,’” Belveal said.

Belveal said a jury should get to decide, after hearing the facts of the case, whether that’s medical malpractice. He described opposition to common knowledge applying in this case as “elitist protection.”

“Is it justice for all, or is it justice for those folks who can afford an expert to come in and say, ‘No, this this is wrong,’” he said, adding that “at some point, we should trust the jurors to be able to make certain decisions.”

Jason Alatidd is a Statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.