Case Dismissed Given Deficient Expert Testimony

Plaintiffs preparing a Tennessee health care liablity (formerly called “medical malpractice”) must pay special attention to their standard of care expert witness, especially if they plan to argue that a specific procedure was required to meet the standard of care.

In Hopps v. Stinnes, No. W2016-01982-COA-R3-CV (Tenn. Ct. App. August 1, 2017), the Court of Appeals affirmed a trial court’s decision to grant partial directed verdict and to refuse to let the jury consider a certain causation issue. Plaintiff was struck in the eye by an object while weed eating, and he went to the emergency room. There, he was treated by defendant nurse practitioner. Defendant obtained a history from plaintiff and “examined his eye with an ophthalmoscope and a Wood’s lamp.” She ultimately prescribed him antibiotic eye drops and discharged him with instructions 1) to come back to the ER if his condition worsened, and 2) to see his doctor within two days. Four days later, plaintiff went to a different hospital with additional symptoms, and he eventually lost his eye due to infection.

Plaintiff brought suit against defendant nurse practitioner under the HCLA, alleging that she “violated the applicable standard of care in her treatment of him…by failing to order the proper tests and for failing to perform proper examinations.” Defendant stated in her answer that she met the applicable standard of care, and she asserted that plaintiff was at fault for “his alleged failure to exercise reasonable care for his own health and well-being” by failing to follow her discharge instructions.

During a jury trial, both plaintiff and defendant offered expert witnesses. Plaintiff’s standard of care witness testified that defendant failed to meet the applicable standard here, and that defendant should have referred plaintiff “emergently to an ophthalmologist the day he was seen, or urgently for follow-up the following day for these assessments.” Plaintiff’s causation witness testified “regarding the causal link between [defendant’s] alleged deviation from the standard of care and [plaintiff’s] injuries.”

Defendant, on the other hand, presented expert testimony that she “fully complied with the standard of care in her treatment of [plaintiff].” Defendant’s expert “lamented that [plaintiff] did not properly follow [defendant’s] discharge instructions,” and testified that “the complications that [plaintiff] suffered from his eye injury did not mean that [defendant] deviated from the standard of care.”

At the close of proof, defendant moved for a directed verdict, which the trial judge partially granted. The trial court ruled that defendant was entitled to a directed verdict on 1) the claim that defendant violated the standard of care by failing to order a CT scan and 2) plaintiff’s claim for loss of vision. The jury subsequently returned a verdict for defendant, and the Court of Appeals affirmed in total.

Regarding the directed verdict on the CT scan issue, the Court noted that the “trial court held that there had been no expert proof that [defendant] deviated from the standard of care by failing to order a CT scan in order to allow that issue to go before the jury.” Plaintiff argued, however, that if you combined the testimony of his causation expert with the testimony of one of defendant’s experts, there was expert testimony supporting the CT scan requirement. The Court quickly rejected this attempt to conflate expert testimony by plaintiff:

The crux of [plaintiff’s] argument is that his expert, Dr. Kurup, testified that the projectile from the weed eater that hit [plaintiff] in the eye was a ‘high velocity missile.’ Dr. Kurup, however, was not an expert on the standard of care. [Plaintiff] then attempts to bootstrap the later testimony of [defendant’s] expert, Dr. Crown, who disagreed with Dr. Kurup on the nature of the impact that the projectile had on [plaintiff’s] eye, stating that an injury from a weed eater is a low velocity impact injury. Dr. Crown was also asked whether a ‘high-velocity impact to the eye would have warranted a CT scan,’ to which Dr. Crown replied ‘yes.’ According to [plaintiff], the combination of Dr. Kurup’s assertion that the injury was due to a high velocity missile and Dr. Crown’s testimony that a high impact injury would have required a CT scan is sufficient to satisfy the requirements of Tennessee Code Annotated [Section] 29-26-115(a).

However, when faced with this same argument…, the trial court considered the entire context of Dr. Crown’s testimony rather than simply parsing out the reply to the aforementioned question as [plaintiff] has suggested. After doing so, the court held and we agree, that there was no proof that the standard of care required [defendant] to order a CT scan.

Instead of looking to this one response, the Court looked at defendant expert’s testimony as a whole, in which he repeatedly stated that defendant had complied with the standard of care. Because the Court held that there was no expert testimony that a CT scan was required by the standard of a care here, the Court affirmed the finding that there was no jury question to be considered on that issue.

Plaintiff also appealed the trial court’s decision to not allow the jury to consider whether plaintiff’s vision loss was due to defendant’s alleged negligence. Because the Court found that there was no proof a CT scan was required, and because “the jury found that [defendant] did not otherwise breach the standard of care,” this issue was “pretermitted” and the Court did not consider it on appeal. With no finding that defendant breached an applicable standard of care, plaintiff was not entitled to any damages. Accordingly, the trial court’s judgment was affirmed.

Here, it appears that plaintiff’s expert proof did not align with his theory of the case. While he argued that defendant was negligent by failing to order a CT scan, his standard-of-care expert did not opine that a CT scan was required in this situation. HCLA plaintiffs should be careful to avoid a situation like this, paying special attention to the expert’s expected testimony as you craft your case strategy – and make your decision about case acceptance.