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California Appellate Court Disallows Expert Testimony in Medical Malpractice Case

The California Court of Appeals recently decided an appeal from a trial court ruling that excluded expert opinions in a medical malpractice case. The appellate court agreed that those opinions were not based on facts and therefore could not be considered as evidence of malpractice.

Facts of the Case

Baby Ngide was born at St. Agnes Medical Center in Fresno on September 27, 2011. The next day, a nurse noticed that the baby was not responsive. The baby was transferred to the Neonatal Intensive Care Unit (NICU) for resuscitation. The NICU is located in St. Agnes Medical Center but is operated by Children’s Hospital of Central California.

Dr. Patrick Nwajei, a neonatologist, did not see the baby girl until she arrived at Children’s Hospital. Dr. Nwajei was not the baby’s treating physician and was not authorized to treat St. Agnes patients unless he was asked to consult by a treating physician. Dr. Nwajei was, however, among the doctors who were responsible for providing patient care at the NICU.

When the baby arrived at NICU, staff members called for Dr. Nwajei. He treated the baby by providing ventilation using a bag mask and by intubating the baby. He then called for a transport team so that the baby could be taken to the Children’s Hospital NICU in Madera, where more specialists were available.

Transport started about one-and-a-half hours after Dr. Nwajei first saw the baby. After transport began, the receiving neonatologist was responsible for the baby’s care.

On June 18, 2012, the baby died from complications caused by a hypoxic brain injury. The brain injury occurred before Dr. Nwajei saw the baby.

Summary Judgment

The father sued St. Agnes Medical Center and Dr. Nwajei for medical malpractice. St. Agnes and Dr. Nwajei both moved for summary judgment, arguing that the undisputed facts established that they were not responsible for the baby’s death.

In opposing summary judgment, the father submitted the affidavit of an expert witness. Dr. Arie Alkalay opined that the nurses and staff at St. Agnes, as well as Dr. Nwajei, failed to provide an appropriate standard of care and that their respective failures contributed to the baby’s death.

Dr. Nwajai relied on an affidavit of his expert witness, Dr. Gilbert I. Martin, who concluded that Dr. Nwajei followed an appropriate standard of care and that none of his actions were a cause of the baby’s death.

St. Agnes submitted the expert affidavit of Dr. Philippe Friedlich, who opined that the actions of the nurses and staff at St. Agnes satisfied the appropriate standard of care.

The trial court concluded that Dr. Alkalay’s opinions were not based on facts established in the record. The court therefore ruled that his opinions were inadmissible. In the absence of expert testimony to establish malpractice, the court granted summary judgment in favor of the medical defendants. The baby’s father appealed.

Objections to Dr. Alkalay’s Opinions

Medical malpractice lawsuits must usually be based on an expert’s opinion that a healthcare provider failed to provide an appropriate standard of care for the patient and that the patient was harmed by that failure. By the same token, medical malpractice defendants must rely on expert witnesses to establish that they met the appropriate standard of care.

Based on his review of medical records and his experience as a neonatologist, Dr. Alkalay expressed the opinion that the mother presented a high-risk pregnancy, that the hospital should have consulted with Nr. Nwajei at the time of delivery, that failing to do so breached the standard of care that a hospital should provide, and that the failure contributed to the baby’s death.

Dr. Alkalay also faulted Dr. Nwajei for waiting until he was notified by St. Agnes of the baby’s need for a neonatologist. Dr. Alkalay opined that Dr. Nwajei had a duty “to ensure that he would be informed and included in the delivery diagnosis, care and treatment of high risk deliveries and high risk newborns.” Dr. Alkalay concluded that Dr. Nwajei failed to abide by an appropriate standard of care when he neglected to remedy the “systems failures” at St. Agnes.

The California Court of Appeals agreed with the trial court that Dr. Alkalay had no factual basis for his criticism of Dr. Nwajei. Dr. Alkalay assumed that it was Dr. Nwajei’s duty to correct “systems failures” at St. Agnes, but Dr. Nwajei was employed by Children’s Hospital, not by St. Agnes. Dr. Alkalay did not explain why Dr. Nwajei would have any responsibility or authority to correct problems at St. Agnes. The court therefore concluded that Dr. Alkalay’s opinion about the standard of care was based on speculation, not on facts.

The appellate court also agreed with the trial court that no factual basis supported Dr. Alkalay’s opinion that St. Agnes staff members should have notified a neonatologist of a high-risk pregnancy. The mother’s attending pediatrician did not do so, and the St. Agnes staff members merely carried out the pediatrician’s orders when he was not there. Since Dr. Alkalay did not explain why nurses would have the authority, much less the duty, to second-guess the pediatrician’s judgment, his opinion about St. Agnes’ alleged breach of the standard of care was again unsupported by the facts.

Since the trial court properly excluded Dr. Alkalay’s opinions, the appellate court concluded that it appropriately granted summary judgment in favor of the medical defendants.

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.