Tag Archives: medical expert

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case.  According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine.  During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility.  Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice.  On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor.  Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test.  The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care.  According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations.   Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted.  This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received.  It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict.  In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

10th Circuit Dismisses ADA Claim for Lack of Expert Witness

Earlier this month, the U.S. Court of Appeals for the 10th Circuit upheld the dismissal of a lawsuit because the plaintiff failed to provide an expert witness connecting a diagnosed medical impairment to the harm she allegedly suffered.  In its decision, the 10th Circuit clarifies the standard for proving a medical condition in an ADA claim and reinforces the need for medical expert witnesses.

ADA Plaintiff Alleges Injury Caused Failure to Work

In Felkins v City of Lakewood, Plaintiff Cynthia Felkins, formerly an employee for the City of Lakewood, Colorado, claimed that a medical condition called avascular necrosis caused two significant injuries that prevented her from working for long stretches during the early part of 2009.  In late 2008, Felkins suffered from a broken femur causing her to miss over 466 hours in the first 10 months of her job as an emergency call-center dispatcher.  After being fired in early April of 2009, Ms. Felkins filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) that alleged the City of Lakewood failed to accommodate for her disability of avascular necrosis.

The City responded that Ms. Felkins had failed to demonstrate that she had a disability that qualified her for a claim under the Americans with Disabilities Act (ADA).  Arguing that Ms. Felkins had not provided documentation or testimony from a medical expert as is required by the ADA, Lakewood attorneys requested the case be dismissed.  The trial court agreed with the City and dismissed the claim because Ms. Felkins’s only proof of her disability was her own testimony, which was not sufficient to prove that her avascular necrosis was the cause of the injuries that kept her from working.

10th Circuit Requires Expert to Prove Medical Condition in ADA Case

On appeal, the 10th Circuit affirmed the trial court’s dismissal after finding that Ms. Felkins’s own testimony that her avascular necrosis caused her injuries was insufficient to prove an ADA claim.  A necessary component to winning an ADA lawsuit is demonstrating the existence of a physical or mental impairment that “substantially limits one or more major activities.”  Throughout her complaint, Ms. Felkins argued that her avascular necrosis created abnormal cell growth and blood flow that prevented her from lifting, walking, and standing normally, and, most importantly to her lawsuit, caused her a long-term injury that kept her away from her job.

Despite repeated insistence that her avascular necrosis led to her medical impairment, Ms. Felkins did not provide any professional medical evidence from an expert witness that the condition affected her major life activities.  Citing relevant case law, the 10th Circuit opinion found the Plaintiff’s allegations that she suffered from an ADA qualifying impairment unconvincing due to lack of an expert.  Writing, “[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts,” the Court pointed to the need for an expert to verify Ms. Felkins’s claims that her avascular necrosis caused her injury.

Without an expert witness proving her condition caused limitations that the City of Lakewood needed to consider, the 10th Circuit could not allow the case to proceed on Ms. Felkins’s personal testimony alone.  The case serves as a reminder that, while there is a place for lay-testimony, the word of an expert witness is required when medical conditions are the center of debate in ADA claims.

Medical Expert Witnesses in ADA Claims

While lay-testimony such as Ms. Felkins’s declarations is admissible to describe symptoms of a disease or medical impairment, the 10th Circuit reminded plaintiffs that an expert witness is required to not only diagnose a medical condition but also identify the illness as a cause of limitation on major life activities.  Although the ADA was amended in 2008 to loosen the burden of proving the existence of an ADA qualifying injury, the 10th Circuit found that plaintiffs are still required to connect symptoms and other evidence of impaired life activity to a diagnosed medical condition.

In this case, Ms. Felkins case failed because she could not demonstrate that her alleged avascular necrosis caused her physical limitation.  Without evidence of the necessary cause, she could not demonstrate that she qualified for an ADA claim.  Plaintiffs reading the Felkins case can note that a medical expert witness should be part of any ADA claim in order to connect a diagnosed condition to limitations that require accommodation by employers.