“Magic Words” and Medical Malpractice Litigation

While a plaintiff in a health care liability action must prove certain elements through an expert witness, that expert witness is not necessarily required to use “precise legal language.” A medical expert’s failure to use perfect terminology will not automatically result in a victory for defendant, as recently illustrated by the case of Dickson v. Kriger, No. W2013-02830-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2014).

In Dickson, plaintiff sued an ophthalmologist for complications allegedly caused by the negligent performance of LASIK surgery. The case went to trial, and after plaintiff’s proof, the trial court granted defendant’s motion for directed verdict on the basis that plaintiff had failed to establish (1) the standard of care for ophthalmologists in the area at the time of the procedure and (2) that defendant’s negligence was the proximate cause of the damages. The Court of Appeals, however, reversed this directed verdict, finding that the trial court had held plaintiff’s expert to too specific of a language requirement.

“Directed verdicts are only appropriate when reasonable minds could reach only one conclusion from the evidence.” If there is any material evidence to support plaintiff’s theories, then plaintiff should survive a motion for directed verdict. Here, the Court of Appeals found that a reasonable juror could find that plaintiff established the necessary elements of his case.

As to the standard of care, plaintiff’s expert testified that he knew the standard of care in this community for eye surgeons; that defendant’s continuation of the procedure after cutting an irregular flap was a deviation from the standard of care; that he held this opinion to a reasonable degree of medical certainty; and that in the situation, “I would have put this flap back down and come back another day, and he would not have had these problems.”  Defendant argued that, based on this testimony, the expert “did not state that he was familiar with the standard of care for the time period when [plaintiff’s] surgery occurred,” instead testifying regarding the standard of care “during surgery” and “in [plaintiff’s] case.” Although the Court called the phrases used by plaintiff’s expert “less than ideal,” it found that such terminology “would not prevent a jury from determining the time period involved.” The Court stated that the expert testimony regarding plaintiff’s surgery could only apply to the relevant time period, as only one surgery was performed. In analyzing the issue, the Court stated:

We have never required perfect language from medical experts in healthcare liability actions in order for the case to proceed to the jury. Imprecise statements by an expert witness will not prevent the plaintiff from establishing a prima facie case if a reasonable juror could conclude that the expert had established the standard of care at the time of the incident giving rise to plaintiff’s injuries.

Regarding the expert’s standard of care testimony, the trial court had also identified as a flaw that the expert testified regarding what he personally would have done. The Court of Appeals noted that this particular testimony was inadmissible to establish the standard of care, but found that such inadmissible testimony “does not negate his later admissible statements regarding the standard of care.”

Defendant’s second argument was that plaintiff’s expert “did not testify that [plaintiff’s] injuries would not have otherwise occurred but for the alleged medical negligence.” At trial, plaintiff’s expert read from a letter he had previously written, stating “plaintiff’s problems were a direct result of his LASIK procedure” and that plaintiff’s problems “are due to complications of LASIK that [defendant] deviated from the standard of care when he created an irregular flap and still proceeded with the laser procedure.” Again, the Court of Appeals found that a reasonable juror could find that plaintiff met his causation burden through this testimony. “To require medical expert witnesses to use precise legal language when discussing causation is ‘expecting too much.’” The Court stated that a reasonable juror could interpret the testimony to mean that the injuries were caused by either the LASIK procedure itself or by defendant’s negligence, and for the purpose of directed verdict, the interpretation most favorable to plaintiff must be adopted. Thus, while open to some interpretation, the expert’s testimony was enough to reasonably establish causation in this case.

Because the most plaintiff-friendly view of the evidence presented established both standard of care and causation, the grant of directed verdict was reversed and the case was remanded to the trial court.

The Court of Appeals reached the correct result in this case. As the Court repeatedly pointed out, medical experts are not lawyers. They cannot always be expected to testify in perfect legalese. Requiring magic words from expert witnesses would be unfair to plaintiffs, and this case is a helpful tool in the arsenal of health care liability plaintiff’s attorneys should the sufficiency of their expert’s testimony be challenged.