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Alaska Doctor Cleared of Malpractice Due to Insufficient Expert Testimony

Written on Friday, April 30th, 2021 by Kimberly DelMonico
Filed under: Expert Opinions, ExpertWitness, Working with Experts

An Alaska couple has lost their medical malpractice case against a doctor that they claimed caused the wife’s seizure for failure to support the claim with sufficient expert witness testimony.

The Incident

On February 6, 2016, William Beistline brought his wife Marcie to the Fairbanks Memorial Hospital emergency room.  She was seen by Dr. Bruce Footit, a board-certified internal medicine physician.  Marcie had been acting strangely and dealing with confusion, lethargy, and unsteadiness in the days prior to her visit.  She was also suffering from nausea, vomiting and diarrhea.

Marcie had been receiving “very unorthodox” and “fairly nontraditional” treatments for Lyme disease and insomnia. Marcie’s treatment providers had implanted a port in her chest so that she could self-administer “vitamin bags.” These providers had not given her any follow-up care for her port. Marcie was also taking Ambien, benzodiazepines, muscle relaxants, and other herbal remedies. Marcie’s medical history appeared to include depression, “potential psychiatric disease,” and chronic insomnia.

Dr. Footit was unable to determine what was in the vitamin bags or the dosage or frequency of Marcie’s medications. Dr. Footit believed that Marcie was possibly experiencing hyponatremia, or abnormally low amounts of sodium in the blood, and delirium due to her excessive medication use.  He also determined that Marcie’s change in mental status was likely due to sepsis or bacteremia from her port.

Dr. Footit ordered a hold on Marcie’s medications, a toxicology screen, IV fluid resuscitation, and the removal of her port. Two days after her port was removed, Marcie suffered a tonic-clonic seizure. She was transferred to the intensive care unit and discharged three days later.

Superior Court

In 2018, the Beistlines filed a lawsuit against Dr. Footit and the hospital. They claimed that Marcie’s seizure was the result of Dr. Footit’s decision to cut off all of her medications, which breached the standard of care.

Dr. Footit and the hospital filed a motion for summary judgment. They supported their motion with the expert affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician. Dr. McIlraith noted that Dr. Footit did not have access to Marcie’s medical records and that Marcie was delirious. He testified that the standard of care required that potential causes of the delirium be treated and that Dr. Footit did this by correcting the hyponatremia and treating the sepsis from the implanted port. He also testified that Dr. Footit acted competently, met the standard of care, and acted as a reasonable and prudent internist by withdrawing the unknown medications.

The Beistlines opposed the summary judgment motion and filed an affidavit from pharmacist Dr. Gregory Holmquist. Dr. Holmquist assumed that Dr. Footit had discontinued Marcie’s benzodiazepine drugs and Ambien and testified that there are strict protocols for how to remove patients from these drugs and that a failure to follow the protocols could contribute to seizure.

The superior court determined that Dr. Holmquist was not qualified as an expert under AS 09.20.185(a), which requires a witness to be “certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” The court ruled, “A doctor of pharmacy’s expert testimony is insufficient to rebut the testimony of a board-certified internist about the standard of care required of a board-certified internist practicing internal medicine.”

The superior court granted summary judgment for Dr. Footit and the hospital.

Alaska Supreme Court

The Beistlines appealed. The Alaska Supreme Court agreed with the superior court that a pharmacist who was not board-certified in the same field of practice as Dr. Footit would not qualify to give expert testimony about the standard of care required of a board-certified internist practicing internal medicine.

The court pointed out, “Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also ‘general knowledge to a board-certified internal medicine physician,’ although he believes that they ‘should be.’ And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult ‘the hospital’s pharmaceutical department.’”

The Alaska Supreme Court affirmed the judgment of the superior court.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

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