1. 1 指導教授：周天 所長 報 告 人：碩專班二年級 9520710 劉文治 國立高雄第一科技大學 科技法律研究所 案例討論 課程：醫療與法律 案號： Campbell v. Arnold Delbridge Iowa 2003 670.N.W.2d 108

2. 2 Supreme Court (Larson J.) District Court Lester Campbell Appellant Arnold Delbridge Covenant Medical Center Appelle 1.There are disputed issues of fact that preclude entry of summary judgment 2. Reverse and remand for trial 1. Lacked the necessary expert witness to establish Liability or damages 過失，違反契約 敗訴 上訴

3. 3 Fact(1) 1.Lester Campbell was admitted to covenant for a total right knee arthroplasty by Dr. Delbridge(orthopedic surgeon) He precluded the use of blood or blood products, including his own. His medical chart made numerous references to his refusal to accept blood infusion. After surgery, Dr Delbridge ordered the use of a Gish orthoinfuser to collect blood from the surgical site. Gish provide a reservoir where blood can be stores for disposal or possible reinfusion and it provided the best suction

4. 4 Fact(2) 1.The nurse anethetist who took Campbell to the postanesthesia care unit (PACU)stated in an affidavit that at the request of Dr. Delbridge, she told the PACU nurses that Campbell was a Jehovah’s Witness and was not to be reinfused. 2.The nurse who started the reinfusion admitted in her deposition that she did not look at Campbell’s chart for an order to start the reinfusion as usually required. 3.She based her decision to reinfusion on the fact that the Gish with its blood reservoir suggested that reinfusion to be done

5. 5 原告主張 請求權基礎為：過失； ( 侵權行為 ) ，契約 ( 債務不履行 ) 1.negligence, failure to obtain informed consent 2.Breach of contract 3.medical battery( 醫療傷害 ) 4.invasion of privacy Campbell had originally indicated he would have an expert witness on the doctor’s standard of care, but the witness was withdrawn

6. 6 被告主張 1.Dr. Delbridge moved for summary judgment on the ground without expert testimony ( 被告主張原告未在 180 天內提出專家證人，而要求直 接裁判 2.Covenant field a motion to preclude plaintiff’s medical evidence under Iowa Rule of Civil Procedure 1.508(3) (failure to identify expert) and Iowa Rule of Evidence 5.104 (a)

7. 7 District court The plaintiff lacked the necessary expert witness to establish liability or damages, and the suit was dismissed.

8. 8 Issues 1.If an issue in a malpractice case may be determined by lay( 非專業 ) fact finders( 事實認定 )without the testimony of expert, we have allowed the fact finder to resolve it without expert testimony. 2.For example: Oswald we ruled that expert testimony was not required as to all of the element of a medical malpractice case (Oswald 453N.W.2d at 636-37)

9. 9 Issues(2)---- expert witness A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to court and all other parties the expert’s name, qualifications and the purpose for calling the expert.. within one hundred eighty days of the defendant’s answer unless the court for good cause not ex parte extends the time of disclosure If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave( 同意 ) for the expert’s testimony is given by the court for good cause shown

10. 10 Supreme court If all the primary facts can be accurately and intelligibly described to the jury, and if they as persons of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from then as are witness possessed of special or peculiar training, experience, or observation in respect of the subject under investigation expert testimony is not required

11. 11 Supreme court 1.Evidence concerning the lack of communication between the doctor and the hospital nurses, the possible mixed-up inpatient charts and the doctor’s admission( 承認 )of error were capable of being resolved by a fact finder without the testimony of experts. 2.Expert testimony was not necessary to sustain patient’s claim of emotional distress. 3. Proof of an accompanying physical injury was not required to recover for emotional distress claim 4.Reversed and remanded

12. 12 Thanks for your attention