Jewish Hospital & St. Mary’s Healthcare Inc. has filed a strike back lawsuit against two attorneys who filed suits against the hospital. The Jewish Hospital lawsuit claims that the original plaintiff’s attorneys negligently filed the original suits against Jewish Hospital:
 “…before …they had (a)… medical expert who connected the alleged conditions at Jewish and the health conditions of particular patients,”
Attorneys Joseph White and Michael O’Connell, defendants in the Jewish Hospital countersuit, had alleged that unclean conditions caused infections resulting in illnesses and death. These reports where reportedly based on claims made by 96 plaintiffs who hired the attorneys to represent them in their claims against Jewish Hospital.
 While Kentucky tort law generally requires that to prove a claim of medical malpractice a plaintiff must submit at trial proof supported by a medical expert. There are a number of important exceptions to that rule.
The Kentucky Court has held:
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“The negligence of a physician generally must be established by medical or expert testimony unless the negligence and “injurious resultsâ€? are so apparent that a layperson with general knowledge would have no difficulty recognizing it.â€?Â
See: Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). See also Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992).
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The original lawsuit claimed that unclean conditions at the hospital had resulted in the illnesses of the plaintiffs. Claims of blood, bodily fluids and feces being found in areas in which patients where placed, followed by subsequent infections being reported by those patients, may well present a classic exception to the requirement for an “expertâ€? medical witness.Â
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In an unpublished case in which the Court of Appeals held that a medical expert was not necessary, it was stated:
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“Simply put, the alleged medical negligence is such that expert testimony was simply unnecessary�. See: Matheny v.Sharpe, 2005-CA-001456
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In Lincoln Income Life Ins. Co. v. Mann, 297 Ky. 681, 180 S.W.2d 877 (Ky.App. 05/26/1944) the court noted the layman exception:
“…according to most courts, in the case of common diseases and disabilities familiarity with which is a part of general knowledge, one who has observed the patient during his illness and has seen similar cases may testify as to what disease or ailment he had.’
 And, “It was held that it was competent for layman to testify as to the condition of the applicant up to the time he became disabled, after inhaling the gas, and his condition thereafter, in order to combat the theory of the physicians as to the probable consequences of the pre-existing disease.”
 In reviewing the requirement of a medical expert, we would expect the court to ask itself whether a layman would be able to determine whether being exposed to unsanitary conditions could cause the spread of disease and infections.Â
For hundreds of years the general public has understood the connection from being exposed to unsanitary conditions and the contraction of disease. The Bible mentions many stories of lepers who were banished from the community so that they couldn’t infect others. So what is so complex about a layman understanding the connection between unsanitary conditions and the contraction of infections and disease from that exposure?
The simple logic is that if patient X did not have an infection or disease before entering the hospital, and after being exposed to unsanitary conditions at the hospital contracted an infection or disease, that the unsanitary conditions may be found by a reasonable jury to  have been the proximate cause of patient X’s new illness.
The public is regularly bombarded with public health messages about the dangers of being exposed to someone else’s blood, from drinking unclean water, from restaurant workers not washing their hands after using the toilet, from intravenous drug users sharing needles, etc, etc.
Further, we can see no requirement under the law that the expert has to be a physician or a specialist in the particular field in which he is called upon to testify. Nurses are trained in the use of sanitary techniques for handling patients, and nurses have been qualified to testify about issues within their realm of training.
See: Thomas v. Greenview Hospital, Inc., No. 2002-CA-001223-MR (Ky.App. 02/06/2004)
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“Even though Nurse Strader was a licensed registered nurse with certification as an emergency room nurse, Greenview notes that she was not certified in geriatrics or wound care, never taught geriatrics or nursing, and never worked in a nursing home. However, Nurse Strader stated that she was director of nurses for a home health care service with many older non-ambulatory clients, treated patients with pressure ulcers in the emergency room, and had been a shift supervisor at a small hospital.
[43]    Further, in evaluating whether the proposed expert is qualified, Kentucky case law indicates that the trial court must determine only whether the expert has adequate, rather than outstanding qualifications. See Lawson, The Kentucky Evidence Law Handbook, § 6.15[4], at 433; Owensboro Mercy Health System v. Payne, Ky. App., 24 S.W.3d 675, 677-78 (1999).
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 While an expert witness must have some knowledge of the area, the fact that a medical witness is not a specialist in a particular field goes more to the weight to be given his/her testimony than to its admissibility or the competence of the witness to qualify as an expert. Owensboro Mercy Health System, supra at 677. See also Cree v. Hatcher, 969 F.2d 34, 38-39 n.5 (3rd Cir. 1992); Murphy by Murphy, 957 S.W.2d at 298-99 (mechanical engineer qualified to testify as expert and lack of expertise in area of design and manufacture of escalators goes to weight not admissibility).
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 Nurse Strader had some training in wound care and practical experience in recognizing and treating pressure ulcers in geriatric patients. Moreover, she was familiar with nursing procedures. Greenview extensively cross-examined Nurse Strader on her qualifications and the formulation of her opinions. As a result, we believe the trial court did not abuse its discretion in finding Nurse Strader qualified to testify as an expert on the breach of the standard of care by the nursing staff.�
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  We note that nurses are generally responsible for the sanitary condition of the patients room in a hospital. So if the original patients were to have called a nurse or other person who had training in the sanitary rules and regulations of the hospital, then the standard of care and the claimed deviation from that standard of care might well be within the realm of their knowledge and therefore admissible at trial. We can further see a situation where the rules and regulations for maintaining sanitary conditions in a hospital are certainly written down somewhere in hospital documents, and those documents placed in the record along with witness testimony that those written rules were violated by presence of blood and feces being around the patients, would allow a jury to conclude the required standard of care was violated.
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  Jewish Hospital appears to take the position that only doctors can testify about the dangers of unsanitary conditions. We have not had the experience of ever visiting a hospital and seeing a surgeon with a mop and bucket cleaning up patient rooms. That activity is left to the nurses and maintenance staff. It would appear that as far as the standard of care for maintaining sanitary conditions, that the janitor might be more qualified to opine on this issue than a surgeon.
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Turner v. Appalachian Regional Healthcare, Inc., No. 2004-CA-000977-MR (Ky.App. 05/27/2005) says:
“…Kentucky case law recognizes two exceptions to the requirement for expert testimony in medical malpractice cases, (See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992) (the exceptions are
(1)Â Â situations in which a lay person can conclude that such things do not happen if proper skill and care has been used, such as when a foreign object is left in the body, and (2) situations in which the defendant doctor makes admissions of a technical character from which an inference of negligence can be made).
The law does not require that a plaintiff call his own medical expert. The law recognizes that the defendant doctor may make admissions “of a technical character from which the inference of negligence can be made.�
We do not know if the doctors called by Jewish Hospital would have admitted that exposure of a patient to blood, body fluids and feces is a dangerous condition, but we can assume that no juror would have believed him if he had said that such exposure was not dangerous. On the other hand, we would assume that any medical employee of a hospital would admit that indeed, such exposure to unsanitary conditions is a deviation from the standard of care.
There is no requirement under the law for the plaintiff to have consulted with a medical expert prior to the filing of the lawsuit (however we do think that is the best practice).  In the Courier-Journal article written by Andrew Wolfson, he quoted the Hospital lawyers as alleging that  Attorneys White and O’Connell “before they filed their cases …had no medical expert�.
The Wolfson article goes on to state a refutation:
“In White’s answer, his lawyer, Gary Weiss, claims he filed the suits based in part on a doctor’s opinion that the injuries arose from unclean conditions, including failure of doctors and staff to wash their hands and to wear gowns, gloves and masks where appropriate.â€?
If indeed White could have produced a doctor to testify that the injuries arose from unclean conditions….then that would appear to provide all the required “expert� testimony to allow the case to get to the jury.
   Strike back lawsuits have been used in a number of environmental lawsuits. The practice now being extended to the medical profession is not surprising. But what is surprising is the chagrin expressed by the Hospital’s lawyers when White and O’Connell are fighting back. Â
 Wolfson reported: “The hospital’s lawyers said in interviews yesterday they were disappointed that White and O’Connell are trying to re-litigate the underlying cases, which they have already lost.â€?
 That claim is a real stretch. They are suing White and O’Connell alleging they had no basis for their claims of unsanitary conditions, and are now like the policeman in Casablanca they are “shocked, shocked I tell you… that gambling has been going on� as he collects his nights winnings.   The Hospital attorneys must be delusional if they believe they can maintain a strike back lawsuit and not expect the defendants to defend themselves by reference to the proof of the original claims of unsanitary conditions alleged in their original lawsuits.  If the managers of Jewish Hospital that authorized the strike back lawsuit against the attorneys thought they could sue the attorneys without exposing their own dirty laundry then they were sadly mistaken, or perhaps ill-advised.
  Jewish Hospital by authorizing the strike back lawsuits against White and O’Connell, have provided a forum for discussion of their sanitary practices.  The hospital lawsuit said there was no basis for the original claims…so the defense is mandated to bring up the facts regarding those claims of unsanitary conditions.
The Jewish Hospital won a procedural and technical victory in getting the dismissal of the lawsuits. By no stretch of the imagination has any court in this case made a finding that the unsanitary conditions did not exist. There has been no jury verdict finding the hospital clear of any negligence. All they have so far achieved is a dismissal on procedural and technical grounds without any finding on the facts.Â
The Jewish Hospital lawyers fought hard and successfully to avoid discussion of the actual facts and claims in this case. Why they would now file a strike back lawsuit that will require a public discussion of those same facts is unfathomable.
 Perhaps the public interest will in the end be served by this lawsuit by the exposure to the facts regarding the claims of the 96 original plaintiffs about their illnesses which they claim were contracted at the hospital due to unsanitary conditions. Didn’t Jewish Hospital see this one coming?
 See the Wolfson article at: Lawsuits vs. Jewish Hospital defended                             By Andrew Wo