Operating room

Standard of Care Expert Opinions Held Sufficient to Defeat Summary Judgment

Written on Thursday, August 8th, 2019 by T.C. Kelly
Filed under: ExpertWitness

Doctors commit malpractice when they breach the standard they should follow when caring for a patient. The applicable standard of care is a matter of expert opinion. Reversing a summary judgment in favor of a doctor, the Georgia Court of Appeals recently emphasized that it is the job of a jury, not the trial judge, to decide whether an expert’s standard of care opinion is credible.

Allegations of Malpractice

Fritz Swint alleged that his nerves were damaged, causing a limitation of the use of his right hand, as the result of robotic and laparoscopic prostate surgery in 2009. He filed a medical malpractice lawsuit against Dr. Paul Alphonse, Jr., who performed the surgery, and Midtown Urology, P.C., which employed Dr. Alphonse, Jr.

During Swint’s surgery, the operating table was tilted at a steep angle, raising his feet above his head. While the “Trendelenburg position” is commonly used in certain surgical procedures, Swint’s body remained in the same position for more than 9 hours.

After the surgery was completed, Swint had pain in his shoulders and arms. He was diagnosed as suffering from compartment syndrome, a condition that occurs when pressure builds up in a particular “compartment” of the body. Failing to relieve the pressure can stop the flow of blood into muscles, leading to tissue or nerve damage.

The morning after the operation, Swint had surgery to relieve the pressure causing his condition. After the surgery, Swint did not regain full use of his right arm and hand. He attributed that disability to being left in the Trendelenburg position for an extended period of time.

Dr. Alphonse, Jr. moved for summary judgment, arguing that no breach of a standard of care caused Swint’s disability. The trial court granted that motion. The court’s decision was reversed by the Georgia Court of Appeals.

Urologist’s Expert Opinion

Swint relied on the expert opinions of two physicians. Dr. Michael Palese, a urologist, had experience performing robotic and laparoscopic urological surgery.  In fact, Dr. Palese established a robotic surgery program and has authored textbooks on the subject.

Dr. Palese expressed the opinion that the standard of care for a patient placed in the Trendelenburg position requires the patient to be given a “positional holiday” after four or five hours to relieve the buildup of pressure. The patient’s body should be returned to a horizontal position for a period of time until it regains equilibrium.

Dr. Palese believed that Dr. Alphonse, Jr. should have assessed the situation at the four-hour mark, should have determined that the surgery would not soon be completed, should have prepared Swint’s body for a positional holiday, and should have placed Swint in a horizontal position before the fifth hour of surgery. Dr. Palese believed that the failure to do so breached the appropriate standard of care.

In his deposition, Dr. Palese testified that the standard of care was well-known and followed in 2009 for surgeries involving the Trendelenburg position. In addition, robotic prostatectomies were common in 2009, and it had become routine for surgeons performing the procedure to give the patient a positional holiday.

Dr. Palese testified that that the compartment syndrome may have started before the four-hour mark, but opined that the damage was worsened by the failure to give Swint a positional holiday. Dr. Palese candidly acknowledged that he was not qualified to determine whether treating the compartment syndrome more quickly could have lessened the severity of Swint’s injury, because urologists do not treat compartment syndrome.

Vascular Surgeon’s Expert Opinion

In response to Dr. Alphone, Jr.’s complaint that Dr. Palese was not qualified to determine whether an alleged breach of the standard of care caused Swint’s compartment syndrome, Swint presented the affidavit of Dr. Paul Collier, a vascular surgeon. Dr. Collier treats patients who suffer from compartment syndrome.

Dr. Collier opined that Swint probably did not develop compartment syndrome until after he was in the Trendelenburg position for more than 4 hours, because his symptoms would likely have been worse if the syndrome had developed earlier. He also made a differential diagnosis that the compartment syndrome was caused by being in the Trendelenburg position after ruling out other possible causes of the syndrome.

Summary Judgment Ruling

Despite Swint’s reliance on a standard of care expert and a causation expert, both of whom were well qualified, the trial judge granted summary judgment in favor of Dr. Alphonse, Jr. The judge agreed that the evidence supported a finding that Dr. Alphonse, Jr. breached the standard of care. Citing Dr. Palese’s testimony that the compartment syndrome may have been caused before Swint had been in the Trendelenburg position for five hours, however, the judge concluded that no evidence supported a finding that Dr. Alphonse, Jr.’s breach of the standard of care caused Swint’s injury.

The judge rejected Dr. Collier’s opinion that failing to give Swint a positional holiday caused or worsened his compartment syndrome. Applying the Daubert standard, the court ruled that Dr. Collier’s opinion was not based on adequate facts or data. The judge accordingly dismissed the lawsuit.

Daubert and Medical Opinions

Swint’s case is an example of how a mechanical application of the Daubert standard is ill-suited to an analysis of medical opinions. Some judges seem to think that Daubert require proof that opinions are true with a high degree of certainty, when a civil plaintiff is only required to prove that the elements of a claim are more likely than not true.

Medical science is far from certain. While expert opinions cannot be based on speculation, the “facts and data” upon which medical experts rely do not always include rigorous scientific studies, simply because studies are not always available. Researchers cannot ethically place hundreds of text subjects in the Trendelenburg position for varying lengths of time to measure the onset of compartment syndrome.

Medical experts rely on their own experience and the experience of their colleagues when studies have not answered a medical question. Years of experience practicing medicine and handling patients with similar conditions can assure that the expert’s opinion is not based on conjecture, which is the ultimate goal of the Daubert standard. As long as an opinion has a sound basis, whether to accept the opinion is up to the jury, not the trial judge.

Appellate Ruling on Standard of Care

Dr. Palese’s testimony might been contradictory in some respects. At one point, he seemed to say that the standard of care would allow a surgeon to go as long as six hours without repositioning the body. Perhaps he meant that a surgeon who expects to finish within five hours but then discovers that the surgery will require six hours to finish need not reposition the patient.

As the appellate court noted, if an expert’s testimony is inconsistent, that inconsistency goes to the expert’s credibility. It is the jury’s function to sort out inconsistent testimony and to decide what part of an expert’s conflicting testimony, if any, is worthy of belief.

In Georgia, the “self-contradictory witness rule,” which allows a judge to discount contradictory testimony given by a party when deciding a summary judgment motion, does not apply to expert witnesses. A court may not base a summary judgment finding upon expert testimony that is unfavorable to the party who offered the testimony if the expert’s additional testimony contradicts that finding.

Because the trial court interpreted Dr. Palese’s testimony to mean that the standard of care required a positional holiday before the sixth hour of surgery, and because Dr. Palese testified that the compartment syndrome may have developed before the fifth hour of surgery, it concluded that Dr. Alphosne, Jr.’s breach of the standard of care did not cause Swint’s condition. Since the court relied on a standard of care that differed from at least part of Dr. Palese’s testimony, its ruling was mistaken.

Appellate Ruling on Causation

The trial court also erred in rejecting Dr. Collier’s opinion that Swint’s compartment syndrome probably developed after he had been in the Trendelenburg position for more than six hours. While the trial judge concluded that Dr. Collier’s opinion was not based on “sufficient facts or data,” the opinion was based on Dr. Collier’s review of the medical records, on a differential diagnosis, and on his own experience and training. Any alleged deficiency’s in Dr. Collier’s testimony went to his credibility and to the weight a jury might assign to the testimony, not to whether the testimony, if accepted as true, was sufficient to establish causation.

In addition, Dr. Palese testified that Swint’s condition was made more severe by the failure to give him a positional holiday. The fact that Dr. Palese is a urologist who does not treat compartment syndrome did not justify the trial court’s rejection of that opinion. Dr. Palese was familiar with the kind of surgery that was performed, was familiar with why a positional holiday is necessary to prevent compartment syndrome, and had sufficient training and experience to opine that the longer a patient is kept in the Trendelenburg position, the worse his condition is likely to become.

Since the expert opinions of Drs. Palese and Collier, both separately and taken together, would allow a jury to conclude that Dr. Alphonse, Jr. breached the standard of care and that the breach harmed Swint, the trial judge erred by granting summary judgment. The expert evidence entitled Swint to have his medical malpractice claim decided by a jury.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.