Connie Lockhart was treated in a hospital emergency room in Cherokee County, Georgia. An emergency room physician, Dr. Glenn Bloom, mistakenly placed a catheter in her femoral artery rather than a femoral vein. The accumulation of medications administered through the catheter destroyed the tissue in her leg, resulting in its amputation.
Lockhart sued Dr. Bloom for medical negligence. Lockhart relied on the expert testimony of Dr. Eric Gluck to establish a breach of the standard of care for inserting a femoral catheter. Dr. Gluck had been board certified in critical care medicine for 27 years and had extensive experience placing central venous catheters in the femoral region.
Dr. Gluck is not an emergency room physician. He testified that he runs the ICU at the Chicago hospital where he is employed. He also testified that he is chair of a critical care committee that sets hospital policy for critical care departments, including the emergency department. He had personal, recent experience placing femoral catheters in an ICU but not in an emergency room.
Dr. Gluck testified that emergency room physicians, critical care physicians, and general practice physicians all follow the same standard of care for placing a femoral catheter. The standard of care requires the physician to identify the correct vein in which to insert the catheter and to follow an accepted procedure for its insertion. After it is inserted, the standard of care requires the physician to use one of four methods to confirm that it was inserted in the correct location.
Dr. Bloom acknowledged that he mistakenly inserted the catheter into the femoral artery but contended that he had no need to confirm its placement in the correct location because he did not suspect that it was placed incorrectly. The standard presumably requires doctors to double-check their work precisely because they might not suspect that they erred. Dr. Gluck expressed the opinion that Dr. Bloom breached the standard of care by failing to confirm the catheter’s placement in its intended location.
On cross-examination, Dr. Gluck admitted that he did not know whether emergency physicians are taught to verify the placement of a catheter. He knew that physicians in the Chicago hospital where he worked were required to verify the catheter’s placement, but he did not know whether that was a nationwide standard. On redirect, Dr. Gluck testified that he was confident that confirming the placement of catheters is a standard that applies regardless of geographical location.
After the presentation of evidence concluded, Dr. Bloom moved for a directed verdict on the ground that Dr. Gluck was not qualified to articulate the standard of care that applies to Georgia emergency room physicians who place femoral catheters. The trial court concluded that Dr. Gluck’s testimony was “equivocal” as to whether a nationwide standard of care existed. The court concluded that Dr. Gluck was not able to testify about the specific standard of care that applies to emergency room physicians in Georgia, a state in which he never practiced medicine.
The court ruled that Dr. Gluck’s testimony did not establish a standard of care and that Lockhart therefore failed to prove a breach of that standard. The court thus directed a verdict in favor of Dr. Bloom despite the obvious harm he caused to his patient.
Nationwide Standard of Care
Courts define a standard of care as the care, skill, and treatment that, under the circumstances, is recognized as appropriate by reasonably prudent healthcare providers who practice in the same or a similar field of medicine. During much of the nation’s legal history, plaintiffs in medical malpractice cases were required to prove the standard of care that applied in the community where the treatment was provided. Courts were concerned that doctors in rural communities should not be held to the same standards as big city doctors because they had no opportunity to learn of “modern” practice trends that were implemented in remote urban locations.
The “locality rule” began to change as communication and transportation barriers disappeared. Many courts allowed expert testimony about the standard of care in similar communities within a region when physicians had the opportunity to gain experience and keep abreast of medical developments by visiting those communities.
By the late twentieth century, it was clear to most courts that doctors everywhere have the same opportunity, and thus the same responsibility, to educate themselves about best medical practices. Medical journals are available nationwide. Travel to continuing education programs in larger communities was no longer burdensome. With the advent of the internet, webinars bring continuing education programs to physicians in remote parts of the country.
Most courts now agree that it isn’t unfair to expect all physicians within a specialty to be familiar with standards that are widely regarded as necessary to protect patients from harm. For the most part, courts accept that nationwide standards of care, rather than local standards that vary from community to community, are necessary to assure that patients receive care that is consistent with medical advances known to average physicians in the United States who practice in a particular specialty.
Some jurisdictions cling to the “locality” or “similar community” rule. Those jurisdictions seem more interested in protecting physicians from liability for their failure to learn about current standards of care than in protecting patients from negligent care.
The Georgia Supreme Court agreed that Dr. Gluck’s testimony was inconsistent. During his direct and redirect testimony, Dr. Gluck described a nationwide standard of care that applies to all physicians who place femoral catheters. On cross-examination, he admitted that he does not know if that standard of care is taught in all emergency room residency programs. He explained that his knowledge was based on his own experience in establishing a hospital-wide standard of care in Chicago.
Proving the existence of a nationwide standard doesn’t necessarily require proof that every medical school in the nation teaches that standard. No single expert is familiar with the teaching practices in every medical school. By virtue of their own experience attending conferences and meeting with other physicians who practice in a specialty, experts are often capable of forming an opinion that a nationwide standard of care has emerged.
Dr. Gluck’s testimony nevertheless created some uncertainty as to whether he was describing a national standard or a standard that applied only in the Chicago hospital where he worked. However, the supreme court noted that Dr. Gluck’s testimony was admitted into evidence without objection. Dr. Bloom did not make a Daubert challenge to Dr. Gluck’s qualifications or to the facts and methodology that informed his opinion. Instead, Dr. Bloom laid in the weeds and first raised his objection in a motion for a directed verdict after Dr. Gluck’s opinion was already in evidence.
In Georgia, a directed verdict should be granted only if there is no evidence that would support a verdict in the party’s favor. Dr. Gluck testified that a nationwide standard of care existed. If he contradicted that testimony, it was up to the jury to decide which of Dr. Gluck’s contradictory statements to believe. When the trial court decided that Dr. Gluck’s testimony was “equivocal,” the court was commenting upon the expert’s credibility, not upon the existence of evidence that would support the verdict.
The credibility of an expert witness is always for the jury to decide. The trial court erred by disregarding expert testimony that supported the verdict. The supreme court accordingly reversed the judgment.
Lawyers can learn two lessons from the Lockhart decision. First, when an expert witness needs to establish a standard of care, lawyers should prepare the witness to explain why the expert believes that the standard has been adopted nationwide. Reference to medical textbooks, journal articles, or seminars with a nationwide audience may support the belief that a nationwide standard of care exists.
Second, lawyers who want to challenge an expert’s opinion should not wait until the evidence is closed to bring that challenge. Making a Daubert motion before trial or objecting during the trial may result in exclusion of the evidence. While lawyers, as a tactical matter, might not want to alert opposing counsel to deficient testimony while counsel may still be able to correct it, laying in the weeds may allow a jury to base a verdict on testimony that could have been excluded if a timely objection had been made.