Tag Archives: Medical Malpractice

#9867034 Mallet And Stethoscope Over Sound Block In Court

Ohio Supreme Court Rejects Hospital Executive as Expert Witness

The Ohio Supreme Court has ruled that a hospital executive who does not directly oversee treating physicians does not meet the requirements to testify as an expert witness in a medical malpractice suit.

Trial Court

Mark Johnson, Glenda Johnson, and Gary Johnson filed a medical malpractice suit on behalf of their brother, David Johnson. The lawsuit claimed that Dr. Anthony Abdullah was negligent in his treatment of David in 2011.

At trial, Dr. Abdullah called Dr. Ron Walls to testify as an expert witness regarding the standard of care. The Johnsons objected to Dr. Walls’ testimony, arguing that he was not involved in the active clinical practice of medicine. The trial court determined that Dr. Walls was competent to testify and he testified on Dr. Abdullah’s behalf. A jury found that Dr. Abdullah was not negligent in treating David.

Court of Appeals

The Johnsons appealed to the First District Court of Appeals. Upon review, the court addressed only the trial court’s decision to admit the testimony of Dr. Walls. The court noted that Dr. Walls was the chief operating officer of a hospital system, but that his job was “almost entirely administrative.” The court rejected Dr. Abdullah’s argument that Walls was engaged in the active clinical practice of medicine and determined that the trial court should have prevented Dr. Walls from testifying. The court reversed the trial court’s judgment and ordered a new trial.

The Supreme Court of Ohio

Dr. Abdullah appealed to the Supreme Court of Ohio. On appeal, Dr. Abdullah argued that the First District improperly reweighed Dr. Walls’ credibility. The Supreme Court disagreed. It determined that the First District did not find that Dr. Walls’ testimony was untruthful; instead, it had concluded, based on Dr. Walls’ testimony, that Dr. Abdullah had failed to establish that Dr. Walls devoted at least one-half of his professional time to the active clinical practice of medicine.

Evid.R. 601(B) provides in relevant part that a person is disqualified to testify as a witness when the court determines that the person is

(5) …giving expert testimony on the issue of liability in any medical claim, as defined in R.C. 2305.113, asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless: . . .

(b) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.

In Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio3697, 871 N.E.2d 557 (plurality opinion), the court explained that the purpose of the active clinical practice requirement was to prevent testimony from physicians who spend most of their time testifying as professional witnesses and lack experiential background in the area at issue in the case. The key issue in Celmer was not whether the expert’s professional activities constituted the active clinical practice of medicine; the key issue was whether a trial court may permit an expert to testify when they did not meet the requirements of Evid.R. 601 at the time the trial took place, but did meet those requirements when the trial was originally supposed to start, but then the trial was delayed by the request of the opposing party. Dr. Abdullah argued that this Celmer exception should apply here to consider the expert’s duties at the time of the alleged malpractice.

The Supreme Court declined to expand the Celmer exception. The court noted that the facts of this case are significantly different from those in Celmer. There, the court carved out a limited exception to consider the expert’s activities at the time the trial was originally scheduled to begin. Here, Dr. Abdullah asked to extend that limited exception to consider an expert’s activities long before this case was even filed.

The court noted that Dr. Walls testified that about 90 percent of his work would be considered purely executive or administrative. It determined that Dr. Abduallah failed to show that Dr. Walls was involved in the active clinical practice of medicine at the time of the trial and affirmed the ruling of the First District Court of Appeals.

Pennsylvania Justice

Pennsylvania Supreme Court to Determine “Cause of Death” in Medical Malpractice Cases

The Pennsylvania Supreme Court is set to determine the legal definition of “cause of death” in medical malpractice cases.

The Death

On April 28, 2010, Mary Ann Whitman died as the result of a ruptured abdominal aortic aneurysm. Five days prior to her death, her primary care physician, Dr. Conaboy, requested that Whitman have a CT scan, which was reviewed by Dr. Charles Barax. Dr. Barax reviewed the scan and drafted a report that stated that Whitman had an abdominal aortic aneurysm that was “poorly visualized.” His report did not mention any possible rupture.

The Underlying Case

In April 2011, the administratrix of Whitman’s estate, Linda Reibenstein, filed a Wrongful Death Act and Survival Act lawsuit against Dr. Barax and his employer, Mercy Hospital, Scranton. During discovery, Reibenstein made many attempts to depose Dr. Barax. She was finally able to depose Dr. Barax in February 2015, with the intervention of the court. At Dr. Barax’s deposition, he testified that he had spoken with Dr. Conaboy about the CT scan, told him that it showed a previously undocumented abdominal aortic aneurysm, that he could not visualize it very well, and that he could not confirm whether it was bleeding or rupturing.

In March 2016, following Dr. Barax’s deposition, Reibenstein initiated a separate wrongful death and survival suit against Dr. Conaboy and his medical practice. The trial court consolidated the two lawsuits.

The Conaboy defendants filed a motion for summary judgment, arguing that the two-year statute of limitations for personal injury actions prevented the lawsuit. Initially, the trial court denied the motion, concluding that there were genuine issues of material fact. On reconsideration, the court granted summary judgment because it found “no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death.” Reibenstein appealed.

Appeals Court

Reibenstein appealed to the Superior Court of Pennsylvania. There was one issue on appeal: whether the trial court erred in granting summary judgment in favor of the Conaboy defendants on the ground that the statute of limitations governing the wrongful death claim could not be equitably tolled because Whitman’s medical cause of death was correctly identified on her death certificate.

Specifically, Reibenstein argued that Dr. Barax’s concealment of his communications with Dr. Conaboy regarding Whitman’s aneurysm is directly related to her death; therefore, the two-year statute of limitations should have been equitably tolled according to subsection 40 P.S. § 1303.513(d). She noted that the statute did not define “cause of death” or explain how the defendant must conceal the cause of death for equitable tolling to be applied.

Dr. Conaboy responded that the statutory language was clear, Whitman died of a ruptured abdominal aortic aneurysm, the cause of death was correctly recorded on her death certificate, and that the statute of limitations should not be tolled.

Upon review, the Superior Court noted that “cause of death” was never defined in the statute and there was a question as to whether it meant the immediate medical cause of death listed on a death certificate or whether it also included conduct leading up to the decedent’s death. The Superior Court reasoned that both interpretations were reasonable.

The Superior Court noted that the stated purpose of the Medical Care Availability and Reduction of Error Act was to ensure that high quality health care is available and to provide compensation to persons who sustain injury as the result of medical negligence, while controlling the costs of medical malpractice insurance rates. The court adopted the broader interpretation of “cause of death” and found that the trial court erred in concluding that no equitable tolling applied. Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020).

Reaction to the Case

The American Medical Association and other physician advocacy groups heavily criticized the Superior Court’s opinion. They argue that “cause of death” is a term so common in the medical community that it is unambiguous and should not be subject to the court’s interpretation.

The case is currently pending before the Supreme Court of Pennsylvania, where it will be up to the highest court in the state to determine the legal definition of “cause of death.”


MedMal Cases with Unclear Causes of Death or Injury Can’t Proceed Without Sufficient Expert Testimony in Arizona

The Arizona Supreme Court has ruled that medical malpractice cases involving unclear causes of death or injury cannot proceed without sufficient expert testimony to provide guidance to jurors.

The Incident

In March 2012, Michelle Sampson took her four-year-old son, Amaré Burks, to the Surgery Center of Peoria for a scheduled tonsillectomy and adenoidectomy. Surgery Center of Peoria is an outpatient surgery clinic, and the scheduled procedure was considered routine with an extremely low complication rate.

Dr. Guido administered the general anesthesia and Dr. Libling performed the procedure.  Dr. Libling remained with Amaré for about thirty minutes after the surgery and then transferred him to the post-operative anesthesia care unit. Nurse Kuchar attended Amaré in the recovery room. After sixty-one minutes, Amaré scored eight out of eight on a vitals-release test and he was released to his mother’s care.

Sampson took Amaré home and put him to bed. She had been told that it was normal for a patient to sleep after surgery. Approximately two hours after his discharge, Samson checked on Amaré, but he was not breathing. Emergency personnel were unable to revive him.

The Lawsuit

Sampson brought a wrongful death action against the Surgery Center, Dr. Guido, and other defendants.

Sampson identified Dr. Greenberg as her expert witness to establish cause of death, proximate cause, and standard of care.

Dr. Greenberg testified that “(1) one hour was insufficient to assess a pediatric patient for discharge and that three hours was appropriate, especially for a child with a history of sleep apnea; (2) the anesthesiologist fell below the standard of care by discharging Amaré before that time and Amaré’s death could have been prevented with longer observation in the PACU; and (3) Amaré died from being rendered unable to breathe from the after-effects of surgery and anesthesia, as his pharyngeal tissues were swollen and obstructed his upper airway, and the residual effects of anesthesia did not allow him to awaken to overcome the obstruction.” 

Dr. Greenberg also opined that the standard of care required between one and three hours of observation before release.

The Surgery Center and Dr. Guido filed motions for partial summary judgment and argued that Dr. Greenberg’s testimony did not establish that their actions had proximately caused Amaré’s death. The trial court agreed and entered final judgment against Sampson. She appealed and the court of appeals reversed, finding that a reasonable jury could determine that the standard of care for observation was three hours.

The Arizona Supreme Court Decision

The Arizona Supreme Court granted review to determine whether the court of appeals erred.

Upon review, the Arizona Supreme Court noted that Arizona law requires that in medical malpractice cases, “causation must be established by competent expert testimony, and the narrow exception is that a jury may infer such causation if malpractice is ‘readily apparent.’”

The court stressed that in this case, expert testimony establishing causation was essential. However, disagreement existed over the cause of Amaré’s death. “Whereas the autopsy report stated that Amaré died from a ‘disseminated Strep Group A’ infection, Dr. Greenberg opined he died from a ‘swollen and obstructed upper airway’ combined with his inability ‘to breathe from the after-effects of surgery and anesthesia.’ Given that even the medical experts did not agree on the cause of death, it is unrealistic to conclude, as the court of appeals did, that a jury “could properly infer that the early discharge was the probable cause of Amare’s death.”

The court determined that, in this case, the court of appeals had departed from the proper standard for proving causation by allowing the jury to determine causation based on speculation built upon inference. Accordingly, it reversed the court of appeals decision.

Gavel and Stethoscope on Reflective Table

Georgia Court Reinstates Malpractice Verdict Despite Expert’s Equivocal Testimony About a Nationwide Standard of Care

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. 

Directed Verdict

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.

Appellate Analysis

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.

Lessons Learned

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.

Gavel and Stethoscope on Reflective Table

Virginia Supreme Court Rules Expert’s Opinion Regarding Cause of Death Was Improperly Admitted in Malpractice Case

The Virginia Supreme Court recently made two rulings about expert witness testimony in a medical malpractice appeal. The more significant ruling points to the need for an expert’s opinion to be grounded in facts rather than assumptions.

Facts of the Case

Dr. James Lee is an otolaryngologist. He treated Adam Traisch for sleep apnea. In the course of that treatment, Dr. Lee performed a tonsillectomy and an adenoidectomy. Adam was discharged from the outpatient procedure and went home.

That afternoon, Adam’s mother gave Adam his prescribed pain medication and Adam took a nap. Thirty minutes later, his mother was unable to rouse him. Adam was rushed to a hospital where he was pronounced dead.

The pathologist who conducted Adam’s autopsy attributed his death to cardiac arrhythmia. Adam’s heart appeared to be normal and the pathologist could not identify the cause of the arrhythmia. The autopsy report stated that a genetic disorder could not be ruled out, given that Adam’s parents were first cousins.

Adam’s mother sued Dr. Lee, alleging that Adam was at risk of respiratory failure after the operations in light of Adam’s severe obstructive sleep apnea. Adam’s mother contended that Dr. Lee violated the appropriate standard of care by failing to order that he be monitored overnight following the surgery.

A jury found in favor of Dr. Lee. Adam’s mother appealed to the Virginia Supreme Court, contending that neither Dr. Lee’s expert witness nor Dr. Lee should have been allowed to provide expert opinions.

Dr. Boyd’s Testimony

At trial, Dr. Lee contended that Adam died from Brugada syndrome, a rare hereditary condition that creates a high risk of death from sudden ventricular arrhythmia. He also contended that he had no reason to suspect that Adam had Brugada syndrome because he was not told about Adam’s genetic history, including the fact that his parents were first cousins or that two of Adam’s siblings had also died.

To establish that defense, Dr. Lee offered the testimony of Dr. Simeon Boyd, a pediatric geneticist. Dr. Boyd testified that he relied on a “differential diagnosis” to conclude that Brugada syndrome caused Adam’s death. A doctor makes a differential diagnosis by considering all possible causes of a medical event and then ruling out all but one.

Dr. Boyd also relied on Adam’s developmental delay and “dysmorphic facial features” as evidence that he suffered from a genetic disorder. In addition, he relied on a DNA analysis that revealed a variation in one of Adam’s genes to bolster his opinion that Adam died from cardiac arrest due to Brugada syndrome.

Basis for Dr. Boyd’s Opinions

The Virginia Supreme Court noted that Dr. Boyd was not a forensic pathologist, a toxicologist, a cardiologist, or an otolaryngologist. When he was asked on cross-examination whether postoperative respiratory compromise could have caused Adam’s death, Dr. Boyd said that he was not qualified to express an opinion. When asked how he could rule out a cause of death in his differential diagnosis that he was not qualified to diagnose, he explained that he relied on the expert opinions of others.

The plaintiff’s attorney argued that Dr. Boyd’s determination of the cause of death rested upon a differential diagnosis that he was not qualified to make. Dr. Lee’s attorney argued that Dr. Boyd was entitled to consider the opinions of others because Virginia follows the prevailing rule that permits experts to rely upon data that might otherwise be inadmissible as evidence if it is the kind of data upon which experts in a field normally rely.

Dr. Boyd testified that he relied on the autopsy report to rule out respiratory compromise as a cause of death. While acknowledging that autopsy reports are the kind of data that a doctor might rely upon in forming an expert opinion, the Virginia Supreme Court noted that the autopsy report concluded only that Adam died of cardiac arrhythmia of unknown origin. That opinion did not rule out respiratory compromise as a cause of the cardiac arrhythmia.

Given that the expert witness called by Adam’s mother testified that respiratory compromise can cause cardiac arrhythmia and that no expert relied upon by Dr. Boyd disagreed with that opinion, Dr. Boyd had no basis for his decision to rule out respiratory compromise as a cause of Adam’s death. His differential diagnosis was therefore based on inadequate data and should not have been admitted as evidence.

Dr. Casolaro’s Opinion

The jury also heard the testimony of Dr. Mario Casolaro, an expert in pulmonary medicine. Dr. Casolaro expressed the opinion that respiratory compromise did not cause Adam’s death.

While Dr. Lee argued that Dr. Casolaro’s opinion provided the missing link in Dr. Boyd’s differential diagnosis, the Virginia Supreme Court noted that Dr. Boyd made his differential diagnosis before Dr. Casolaro was deposed. Dr. Lee had no way of knowing about Dr. Casolaro’s opinion and did not mention Dr. Casolaro during his testimony. The court therefore rejected the argument that Dr. Lee had an adequate factual basis for his differential diagnosis.

Dr. Lee’s Opinion

Virginia follows the usual rule that a doctor who is sued for malpractice is permitted to testify as an expert in his own defense. However, Dr. Lee was not designated as an expert witness, and was therefore permitted to give only lay testimony.

Dr. Lee testified that he was not told that Adam’s parents were cousins or that Adam’s siblings had predeceased him. Dr. Lee said that he would not have recommended surgery if he had been aware of the possibility that Adam carried a genetic defect.

The plaintiff’s lawyer argued on appeal that Dr. Lee’s testimony was in the nature of expert testimony and was improperly admitted because he was not designated as an expert. The Virginia Supreme Court disagreed. Dr. Lee’s testimony about what he would have done if he been given more information did not require the expression of an expert opinion.

What the doctor would or would not have done was a fact, and lay witnesses are permitted to testify about facts that are within their own knowledge or experience. If Dr. Lee had explained why he would not have recommended surgery for someone with a genetic defect, he might have been offering expert testimony, but he did not cross that line.

New Trial Ordered

The trial court erred by admitting Dr. Boyd’s testimony, but not by allowing Dr. Lee to testify about what he would have done if he had known Adam might have a genetic defect. Since Dr. Boyd should not have been allowed to testify, the Virginia Supreme Court reversed the judgment and ordered a new trial.

Death in the hospital

Experts Disagree in “Dr. Death” Trial

The latest physician to be dubbed “Dr. Death” by the media was recently found guilty of aggravated assault. A Dallas jury rejected the testimony given by his expert witness and determined that he recklessly maimed a 74-year-old patient. The jury sentenced the former surgeon to life in prison.

Facts of the Case

Christopher Duntsch practiced as a neurosurgeon in Texas, botching one surgery after another. His failures include:

  • Floelle Brown died of a stroke after Duntsch sliced a vertebral artery during surgery.
  • Kellie Martin died of massive blood loss after Duntsch cut through her spinal cord and slashed a major artery.
  • Lee Passmore lives with chronic pain and his ability to walk has been seriously impaired since Duntsch removed a herniated disk and mispositioned the cage that replaced it.
  • Barry Morguloff, another victim of a mispositioned cage during a spinal fusion, suffered from a bone chip that pushed into a nerve root, leaving him unable to move his left foot.
  • Jerry Summers has been unable to move his arms or legs since Duntsch performed neck surgery.

While Duntsch was arrested for injuring or killing several victims of his errant surgeries, the prosecution decided to focus on Mary Efurd. The 74-year-old woman was in excruciating pain after Duntsch performed surgery to fuse two of her vertebrae.

Duntsch was taken to trial on a single count of aggravated assault. The aggravating factor was Duntch’s abuse of an elderly victim. To obtain a guilty verdict, the prosecution was required to prove that Duntsch “intentionally, knowingly, recklessly, or with criminal negligence” injured an elderly person.

The decision to charge a physician with a crime for the alleged abuse of a patient during surgery was unusual and perhaps unprecedented. The jury, however, determined that the facts fit the crime.

Evidence that Duntsch injured other patients was introduced over defense objections. Duntsch’s lawyer argued that the trial was about Efurd’s surgery and that Duntsch’s performance in other surgeries was not relevant. The prosecution prevailed in its argument that the collective history of Duntsch’s surgeries was relevant proof that Duntsch routinely acted with reckless disregard of the appropriate standard of surgical care, and that the outcome of Efurd’s surgery could not be attributed to an ordinary mistake in light of Duntsch’s history.

Prosecution’s Expert Testimony

To prove that Duntsch acted with reckless disregard of the appropriate standard of care, the prosecution called several of his former patients as witnesses. Their emotional testimony may have tipped the scales against Duntsch, but more relevant testimony about Duntsch’s recklessness came from the prosecution’s expert witnesses.

Dr. Robert Henderson, who performed surgery on Mary Efurd to correct Duntsch’s error, testified that he “found implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated.”

Vascular surgeon Randall Kirby, spine surgeon Luis Mignucci, and neurosurgeon J. Michael Desaloms all testified that Duntsch’s errors were not, as the defense suggested, ordinary mistakes that any surgeon could commit. Mignucci agreed that “bad outcomes happen all the time” but refused to characterize Duntsch’s performance as a mistake.

Defense Expert

Conceding the obvious, Duntsch’s attorney told the jury that Duntsch was “not a skilled surgeon.” He blamed the errors on a chaotic operating environment rather than intentional or reckless behavior. Duntsch’s apparent indifference to the harm he caused and his decision to keep operating probably made that argument hard for the jury to accept.

Duntsch called just one witness in his defense. Testifying as an expert, Dr. Carlos Bagley, the director of the Neurological Surgery Spine program at UT Southwestern, agreed that Duntsch’s performance was “sub-optimal.” He affixed blame on Baylor Regional Medical Center for failing to report Duntsch after Kellie Martin bled to death and on Dr. Kevin Foley for giving Duntsch a positive reference despite knowing of his adverse outcomes.

The University of Tennessee Health Science Center allowed Duntsch to practice despite knowing that his skills were questionable, and the Dallas Medical Center CEO did not inform the hospital’s chief medical officer of a bad outcome in one of Duntsch’s surgeries. The Texas Medical Board allowed Duntsch to keep his license for more than a year after his negligence was first reported.

In short, according to Dr. Bagley, the entire system failed, not just Duntsch.

Verdict and Sentence

The attempt to blame the system for Duntsch’s failures did not relieve Duntsch of responsibility in the eyes of the jury. After a 13-day trial, the jury deliberated only a few hours before finding Duntsch guilty.

A felony defendant in Texas can elect to have the jury impose sentence. Duntsch did so and the jury sentenced him to life in prison.

Gavel and Stethoscope on Reflective Table

Appellate Court Allows Medical Expert to Testify in Indiana Malpractice Case

Several states have adopted laws that require medical malpractice allegations to be reviewed by a panel of healthcare providers before a malpractice lawsuit can be filed. Construing Indiana’s version of that law, the Indiana Court of Appeals recently decided that an expert witness would be allowed to testify at trial about a theory of medical malpractice that was not expressly presented to the review panel.

Allegations of Malpractice

Rowena Turner was diagnosed with a form of bone marrow cancer that increased her risk of developing blood clots. She was prescribed anticoagulant (blood thinner) medication to reduce that risk.

Ten years later, Dr. Charles McKeen performed surgery to remove a part of Turner’s colon. When she was discharged, Dr. McKeen told her not to restart her anticoagulant medication.

Two days after her discharge, Turner was readmitted to the hospital with complaints of vomiting. Based on her distended abdomen, Dr. McKeen concluded that she suffered from a small bowel obstruction. Later that day, Turner was transferred to a critical care unit after her blood pressure dropped. She was diagnosed with deep vein thrombosis, a condition that occurs when a blood clot forms in a deep vein, and with acute kidney failure. Turner died about a week later.

Following Indiana’s procedure for bringing a medical malpractice claim, Turner’s husband filed a proposed complaint with the Indiana Department of Insurance. The complaint alleged that Dr. McKeen was negligent and that his negligence caused Turner’s death. Turner’s husband later filed a submission with the Medical Review Panel (MRP), supported by medical records, that explained his theory of Dr. McKeen’s negligence.

The submission to the MRP focused on Dr. McKeen’s failure to perform exploratory surgery promptly after Turner’s readmission to the hospital. The submission did not allege that Dr. McKeen was negligent in the dosage of anticoagulant medication he prescribed during the first hospitalization or in his instruction to forego blood thinners after Turner’s discharge.

The MRP concluded that Dr. McKeen was not negligent. Having jumped through the procedural hoops that Indiana requires before medical malpractice litigation can be commenced, Turner’s husband filed his lawsuit.

Expert Opinion

During discovery, Turner’s husband obtained and furnished the report of an expert hematologist, Dr. Robert Manges. Dr. Manges expressed the opinion that Dr. McKeen negligently failed to provide a proper dosage of anticoagulant medication during Turner’s first hospital stay, given her elevated risk of forming blood clots. Dr. Manges also opined that Turner would not have developed deep vein thrombosis if she had been prescribed an appropriate dosage of anticoagulants after her hospital discharge.

Dr. McKeen’s attorney filed a motion to strike Dr. Manges’ opinions because his theory of malpractice had not been presented to the MRP. The trial court granted that motion but later reconsidered its decision. When it ordered that Dr. Manges would be permitted to testify, Dr. McKeen asked the Indiana Court of Appeals to review that order prior to trial. The Court of Appeals agreed to do so.

Court’s Ruling

After filing a proposed complaint, Indiana law requires a plaintiff to submit evidence in support of the complaint to an MRP. The evidence must pertain to the theory of negligence that will be raised at trial.

The MRP, which consists of three physicians, then renders an expert advisory opinion about the complaint’s merit. The MRP essentially gives a thumbs up or a thumbs down to the complaint but it does not explain its reason for doing so. The opinion has no impact on the plaintiff’s right to file a lawsuit, but it must be obtained as a condition of filing suit.

Attorneys often accompany the evidence with a statement that explains why, in their opinion, the case has merit, but the law does not require them to do so. The Court of Appeals concluded that such statements are not “evidence” and that the failure to explain all the ways (or any way) in which a doctor was negligent has no bearing on the ability to raise those theories of negligence at trial. Turner’s husband was therefore not precluded from contending that malpractice occurred for reasons that were not addressed in the statement submitted to the MRP.

The court also concluded that the proposed complaint filed with the MRP does not need to articulate specific theories of negligence. In Indiana, a complaint merely serves to give notice to the party being sued of the general claim (in this case, malpractice) that is being made. Complaints need not recite evidence in support of the claim.

The complaint filed by Turner’s husband met the notice standard. It alleged that Dr. McKeen was negligent by failing to provide the appropriate standard of care to Turner during a time span that covered both hospitalizations.

The decisive question was whether evidence of the theory of negligence that would be raised at trial was presented to the MRP. There was no question that Dr. Manges’ expert opinion was not included in the evidence submitted to the MRP.

The court held that medical malpractice plaintiffs are not required to provide all of their evidence, including expert opinions, to the MRP. The panelists, after all, are themselves experts. Plaintiffs need only present some evidence that supports the theory of malpractice that will be raised at trial.

Turner’s husband did that by submitting Turner’s complete medical records, which included the anticoagulant dosage that Dr. McKeen ordered during her first hospitalization, as well as his instruction to discontinue the medication after her discharge. Since those are the facts upon which Dr. Manges based his expert opinion, the Court of Appeals agreed that the expert could not be precluded from rendering that opinion at trial.

Doctor examining a pregnant woman

Certified Nurse Midwife Allowed to Give Expert Testimony Against Registered Nurse in 14 Million Dollar Case

A medical malpractice case that resulted in one of the highest malpractice verdicts in the history of Georgia has settled for an undisclosed amount. The case was about to proceed to a second appeal after the initial appeal was resolved in favor of the woman who brought the lawsuit. The issue on appeal was whether a certified nurse midwife should have been precluded from testifying as an expert about the standard of professional care that is expected of registered nurses.

Facts of the Case

Melissa Dempsey gave birth to Kailey Watson at a Gwinnett Medical Center hospital in Gwinnett County, Georgia. Kailey suffers from permanent physical and mental disabilities. Her mother sued the hospital, alleging that Kailey suffered from fetal distress and oxygen deprivation during her birth, resulting in a traumatic brain injury. Dempsey contended that registered nurses (RNs) who were attending the delivery misread or misinterpreted data from a fetal monitor and otherwise failed to detect and address the problem.

Dempsey supported her case with testimony from two expert witnesses. One was an obstetrician. The other was a certified nurse midwife (CNM). After hearing the evidence, the jury ruled in Dempsey’s favor, returning a verdict of nearly $14 million.

Gwinnett filed a motion for a new trial, contending that the CNM was not qualified to testify as an expert. Georgia law permits an expert to testify about the standard of care that a prudent health care practitioner is expected to follow, provided that the expert is a member of “the same profession.” The trial judge agreed with Gwinnett that the CNM was not a member of “the same profession” as the RNs and should not have been allowed to testify. The court therefore granted a new trial. Dempsey appealed.

Court of Appeals’ Decision

The Georgia Court of Appeals decided that the CNM was qualified to testify about the standard of care that an RN should follow. She began her career as an RN and she supervised RNs as part of a labor and delivery team. She testified that the standard of care involved in reading and interpreting fetal monitoring strips is the same for RNs and CNMs.

In many states, the CNM’s professional experience would obviously qualify her to testify as an expert in the standard of care that applies to an RN. Georgia law, however, permits expert opinions about standards of care in malpractice lawsuits to be expressed only by an expert who has actual knowledge or experience in the relevant area, either by active practice or by teaching during at least three of the last five years, and is a member of the same profession as the defendant. (The statute carves out an exception for physicians, who are allowed to express an opinion as to the standard of care that non-physicians in the medical profession must follow.)

The question was therefore whether a CNM is a member of the “same profession” as an RN. In earlier cases, the court held that a pharmacist could not testify against a doctor and that a neither a nurse nor a chiropractor could testify against a physical therapist because they are not members of the same profession. But chiropractors and physical therapists are regulated by different licensing authorities under Georgia law, while Georgia requires a CNM to be licensed as an RN. It was therefore easy for a majority of the court to conclude that a CNM is an RN with advanced training, and therefore a member of the same profession as RNs. More surprising is that three dissenting judges, noting that the statute lists RNs and CNMs separately, concluded that RNs and CNMs belong to different professions, even if the CNM is also licensed as an RN.

Settlement After Remand

Since the trial court granted a new trial based on an incorrect understanding of the law, the court of appeals reversed the order for a new trial. The court did not address the hospital’s argument that the CNM was not qualified by “actual knowledge and experience” to testify against the RNs in the case. Because the trial court did not address that aspect of the hospital’s motion, the court of appeals remanded the case to the trial court to decide the issue.

After the case returned to the trial court, the judge rejected the hospital’s argument that the CNM did not have the necessary knowledge or experience required of an expert witness. The hospital appealed again, but (perhaps bowing to the inevitable) settled the case for an undisclosed sum before the appeal was decided.

Implications of the Decision

In the absence of legislation, courts typically permit any expert to testify about an applicable standard of care who is qualified to do so. General standards of expert testimony admissibility do not depend on a witness’ licensing status or job title.

In some states, legislatures have modified the general rule when expert evidence is required to establish the relevant standard of care in a medical malpractice lawsuit. Georgia is one of 32 states that have adopted statutes setting minimum qualifications for expert witnesses in medical malpractice cases. The statutes have often been enacted as part of a “tort reform” package that also requires lawyers to file an expert’s affidavit certifying that the case has merit.

Whether the legislative limitation on expert testimony is beneficial is far from clear. From the standpoint of lawyers who defend malpractice cases, the statutes prevent unqualified experts from rendering opinions about the standards of care that apply to healthcare providers. From the standpoint of lawyers who represent malpractice victims, the statutes prevent qualified experts from testifying while making it more difficult to find experts, given the fact that members of the same profession are often shunned if they testify against each other.

The Georgia case highlights the importance, at least in most states, of finding expert witnesses in the same profession as the party who is alleged to be negligent in medical malpractice cases. It also illustrates the difficult burdens that legislatures have placed on lawyers as they attempt to determine the “profession” to which an expert belongs. Lawyers searching for experts in malpractice cases need to understand the relevant evidentiary rule (and judicial interpretations of the rule) in the state where the lawsuit will be filed.

Mallet and Florida Flag

Medical Expert Not Required to Practice in Same Specialty as Defendant Physician

The Florida 4th District Court of Appeal held in Weiss, et al vs. Pratt, (4D08-2179 and 4D10-593) that a testifying medical expert witness did not have to practice in precisely the same field as the treating physician in a medical malpractice action to allow testimony as an expert. The Court’s opinion interpreted a portion of Florida law that may provide some immunity for volunteer medical care. The Court suggested that the legislature may want to review the statute to clarify the immunity issue, but did not specifically address that issue in the opinion. It did, however, rely upon the existing language of the Florida statute in its analysis.

Factual Background

A high school football player was hurt in a football game. An orthopedic surgeon who had previously worked in an emergency room and had some training in pediatric orthopedics and sports medicine volunteered as the team physician.

When the injury occurred, the team physician examined the player, asked questions about what happened and what the player felt and saw (a flash of light). He did not recall asking the player about any period of unconsciousness or paralysis, but did not think that there was a spinal cord injury. After that, the doctor helped the player walk from the field. Paramedics arrived, put the player on a backboard and took him to a hospital. The doctor also went to the hospital, ordered tests and based on them and his clinical experience ruled out a spinal cord injury or a hematoma. He diagnosed a neck strain, a right shoulder contusion and prescribed pain medication.

A few days later, the player went back to the physician’s office but was seen by another doctor. By then, he could not lift his arm, flex his elbow and had lost significant strength in the arm. An MRI disclosed an epidural hematoma on the right side of his spinal cord and a contusion near C-5. At some point after that, the team doctor acknowledged that he should have put the player on a backboard on the field, rather than having him walk off of the field. The player sued the team doctor, the emergency room doctor and the hospital.

Trial and Appellate Theories

The trial court allowed expert testimony for the Plaintiff by an emergency room physician about treatment rendered on the football field. The jury found that the emergency room doctor and the hospital did nothing wrong. However, the jury did find against the team doctor and awarded a total of $750,000 as past and future damages.

The basis of the volunteer doctor’s appeal was that the Plaintiff’s expert should not have been allowed to give an expert opinion because he was neither an orthopedic surgeon nor a volunteer team physician and therefore, not “a similar heath care provider.” He also argued that the [Florida] immunity statute for volunteer doctors prevents an expert from another specialty from testifying.

Court’s Reasoning

The 4th DCA held that the team doctor was “similarly licensed” as the expert witness and therefore, the expert testimony was permissible. The court held that the “similarly licensed” reference related only to the introductory paragraph of the statute to include medical practice, osteopathic medicine, chiropractic medicine, podiatric medicine, and dentistry. Therefore, since the team doctor and the expert witness were both medical doctors, the expert testimony was allowable.