Dr. Melissa Sotillo is board certified in obstetrics/gynecology (OB/GYN). She prescribed Cytomel to a patient for weight loss management after the patient’s weight loss plateaued. Prior to taking Cytomel, the patient had been taking phendimetrazine that Dr. Sotillo also prescribed.
When she prescribed Cytomel, Dr. Sotillo followed the recommendations of a software program known as the Weight Loss and Wellness Program. The program was developed by Dr. G’s Franchising Companies, LLC.
Fifteen days after she began taking Cytomel, the patient died from a cardiac occlusion. An autopsy revealed that the occlusion caused a total closure of her left coronary artery.
The patient’s widower sued Dr. Sotillo and Dr. G’s. He alleged that prescribing and (in the case of Dr. G’s) recommending Cytomel to a patient who had been taking phendimetrazine was negligent.
Expert Opinions
Two experts prepared reports for the widower. Christine Stork, Pharm.D., explained that phendimetrazine decreases the diameter of the coronary artery and increases a patient’s heart rate. According to her report, an excess amount of Cytomel can also cause an increased heart rate. She also noted that a black box warning on Cytomel cautions that the drug should not be used for weight loss.
Bruce M. Decter, M.D., an internist and board-certified cardiologist, expressed opinions about Dr. Sotillo’s breach of the standard of care. Because weight loss was outside of Dr. Sotillo’s specialty, Dr. Decter expressed his opinion as to the standard of care that would apply to a general practitioner rather than an OB/GYN.
According to Dr. Decter, Dr. Sotillo breached the standard of care in three ways. First, she failed to take a full history and to perform a full physical examination of the patient. Second, she prescribed medication that went beyond the parameters of the informed consent that the patient signed.
Third, Dr. Sotillo prescribed Cytomel in combination with phendimetrazine. He opined that prescribing the drugs in combination was the proximate cause of the occlusion that was the direct cause of the patient’s death.
Dr. Decter also opined that the combined negative effects of Cytomel and phendimetrazine are well known, and that Dr. G deviated from the standard of care by recommending that they be taken in tandem.
Challenge to Expert Opinions
The trial court granted Dr. Sotillo’s motion to exclude Dr. Decter’s opinion on the ground that he was not a general practitioner and therefore was not qualified to render an opinion as to the standard of care that applied to Dr. Sotillo when she acted as a general practitioner. The court also excluded Dr. Dector’s opinion as to Dr. G’s Weight Loss and Wellness Program because Dr. Decter was not a computer software expert.
Having excluded all of the relevant evidence against both defendants as to the issue of causation, the court granted summary judgment against the widower. He appealed to the Superior Court of New Jersey Appellate Division. In an unpublished opinion, the appellate court reversed the summary judgment.
Standard of Care Experts in New Jersey
New Jersey law requires plaintiffs asserting a medical malpractice case to file an affidavit from an expert witness explaining how the defendant deviated from the standard of care. The plaintiff’s expert must be “equivalently-qualified to the defendant physician.”
New Jersey law specifies that an “equivalently-qualified” specialist is one who practices in the same specialty as the defendant. If the defendant is a general practitioner, the plaintiff’s expert must have recently practiced as a general practitioner, or must have an “active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action.”
Statutes like New Jersey’s have become common, and are commonly used to exclude well-qualified experts regardless of their knowledge or experience. The insurance and medical industry lobbyists who have encouraged passage of the statutes claim that they deter frivolous lawsuits by assuring that qualified experts can attest to the merits of the plaintiff’s claim.
In reality, state statutes artificially narrow the range of experts who are allowed to testify for injured patients without regard to their actual qualifications, and thus serve their intended purpose of making it more difficult to sue doctors. The statutes also undercut the critical role that juries play in evaluating the qualifications of expert witnesses.
Dr. Decter’s Qualifications to Testify About Dr. Sotillo
The trial court ruled that Dr. Decter was not qualified to define the standard of care that applies to general practitioners because his practice was primarily devoted to cardiology. The appellate court recognized that, as a cardiologist, Dr. Decter engaged in an “active clinical practice of medicine” that included prescribing medications to patients and assessing the risks and benefits associated with medications. His practice therefore encompassed the same procedures that Dr. Sotillo used when she treated her weight loss patient.
The appellate court rejected the argument that Dr. Decter was unqualified because he rarely prescribed Cytomel and never prescribed phendimetrazine. The precise medications prescribed do not affect the standard of care that applies to prescribing a medication. Dr. Decter’s inexperience with the drugs at issue went to his credibility, not his qualifications to testify about standard of care.
Nor did it matter that Dr. Decter’s practice does not encompass weight loss management. When a doctor opines about the standard of care a general practitioner must provide, the doctor is not necessarily required to have experience treating the precise condition at issue in the case. The issue here was the standard of care that applies to prescribing medications. The health condition for which medications are prescribed does not change the standard of care for prescribing drugs, which surely includes determining whether the interaction of two prescribed medications might be deadly.
Dr. Decter was well qualified to opine that a general practitioner should take a full history from a patient, should conduct a physical examination, should not prescribe medications under conditions not covered by the patient’s informed consent, and should be aware of black box warnings on drugs that the general practitioner prescribes. Since his practice encompassed taking histories, conducting examinations, reviewing informed consent forms, and prescribing medications, Dr. Decter rendered opinions that were permitted by New Jersey law.
Dr. Decter’s Qualifications to Testify About Dr. G
The trial court decided that Dr. Decter was not qualified to testify about Dr. G’s software program because he is not a software engineer. The court held that he could not determine whether the software was defective and could not express an opinion about its efficacy.
The trial court’s analysis was misguided. The program recommended the prescription of two medications that, taken together, have deadly consequences. A software engineer would not have been qualified to determine whether a recommendation to prescribe a combination of medications would be negligent, because software engineers do not understand the considerations that inform a decision to prescribe medication. It was the output of the program, not the mechanics of its operation, that was the basis for the negligence claim.
The New Jersey malpractice statute presumably does not apply to software companies, since software companies are not doctors. Accordingly, the only question is whether Dr. Decter was qualified to render opinions about the recommendations that Dr. G’s program made.
It was Dr. Decter’s expertise as a physician that made his testimony useful, while an engineer’s testimony would not have been. The appellate court easily concluded that “Dr. Decter is qualified to opine regarding the propriety of the medications recommended by Dr. G’s program,” and that he required no insight into the program’s functioning to render that opinion.
Net Opinion Rule
Finally, the appellate court concluded that Dr. Decter’s opinions did not violate New Jersey’s “net opinion rule.” That rule prohibits the admission of expert opinions that are not supported by facts or data and requires the expert to explain the causal connection between a negligent act and an injury. The explanation must state more than a conclusion; it must provide the “why and wherefore” that links negligent conduct to a resulting harm.
Dr. Decter testified that he relied on Dr. Stork’s explanation of how the interaction of phendimetrazine and Cytomel narrows the artery and increases heart rate. Dr. Decter concluded that the increased heart rate caused the occlusion that resulted in the patient’s death.
Dr. Decter was entitled to rely upon facts and data provided by Dr. Stork, and his reasoning supplied the “why and wherefore” that linked medical negligence (prescribing a contraindicated drug) to the resulting death. His opinion was therefore admissible under New Jersey’s net opinion rule.
