Expert’s Testimony Torpedoes Tort Case
Attorneys representing injured patients should be very careful in selecting expert witnesses in medical malpractice cases, and in preparing those experts for depositions. That is the take-away from yesterday’s North Carolina Court of Appeals decision in Campbell v. Duke University Health System, Inc., et al, (No. COA09-581, filed March 16, 2010). In Campbell, the plaintiff underwent surgery on his right shoulder. One hour after the surgery, he discovered he had ulnar neuropathy (inflammation of the ulnar nerve) in his left elbow. The lawsuit alleged that the surgeon and the anesthesiologist were negligent in failing to properly position, pad, and monitor the plaintiff’s left arm during the right shoulder surgery, and that this negligence caused the ulnar neuropathy.
The North Carolina Court of Appeals affirmed the trial court’s dismissal of the lawsuit because the plaintiff’s medical expert witness failed to establish a causal connection between the plaintiff’s injury and any action or inaction of the defendants. Pursuant to N.C. Rule of Civil Procedure 9(j), the plaintiff designated Dr. Jeffrey Cocozzo, an anesthesiologist practicing in Fort Lauderdale, Florida, as his expert witness to establish that the defendants breached the applicable standard of care and proximately caused the plaintiff’s injury. The case tanked at Dr. Cocozzo’s deposition.
Dr. Cocozzo gave the following sworn testimony regarding the defendants’ alleged negligence:
Q. . . . Do you believe that because Mr.
Campbell sustained a nerve injury whose
symptoms you believe first appeared
postoperatively, do you believe because
he sustained a nerve injury, negligence
must have occurred?
A. Well, it’s basically what he did say,
right. He – he states that he did not
have any nerve injury before and did end
up having nerve injury during – during
the surgery. So therefore that would be
– that would be negligence, yes.
. . . .
Q. You’re presuming that there was
negligence based on the fact that there
is an injury in this case; is that
correct?
A. Yes.
Q. And you can’t point to any specific
incident that happened during the surgery
that would have caused this injury, it’s
just based on your presumption of
negligence because there was an injury at
the end of the surgery; is that correct?
A. Right, right.
Q. And if Mr. Campbell did, in fact, have a
pre-existing condition, then that doesn’t
mean there was anything that happened
during the surgery that caused his
injury; is that correct?
-6-
A. Right. If he had something that was a
pre-condition and he already had an
injury, then obviously he already had an
injury.
. . . .
Q. Okay. And tell me, what is the basis of
your opinion that improper positioning
and/or padding resulted in damage to Mr.
Campbell’s ulnar nerve?
A. Well, basically he – from – from what I
know so far talking to him and looking at
the records, his – I don’t have any
reason to believe that – that he didn’t
have a normal functioning before the
surgery.
He went in for surgery that — where
you can get a complication of having –
from malpositioning of an ulnar nerve
injury and within a day or so after the
surgery he seemed to have — started
having complaints of ulnar nerve injury.
Though the expert seemed to think the negligence claim was based on the doctrine of res ipsa loquitur (the thing speaks for itself), the complaint contained no such allegation. Even if the doctrine of res ipsa loquitur had been plead, the court noted that the doctrine is inapplicable, because the first prong required to invoke the doctrine is missing.
The doctrine of res ipsa loquitur allows the fact finder to draw an inference of negligence from the circumstances surrounding the injury when
(1) the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission;
(2) direct proof of the cause of the injury is not available; and
(3) the instrumentality involved in the accident is under the defendant’s control.
Because the expert admitted that ulnar neuropathy can be a complication of shoulder surgery, the first prong of the doctrine was not satisfied.
It appears that the expert did not realize that the case was based on direct negligence, rather than the doctrine of res ipsa loquitur. His testimony gave the defendants all the ammunition needed to blow the case out of court.
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