Day on Torts
In Graham v. The Family Cancer Center PLLC, No. W2016-00859-COA-R3-CV (Tenn. Ct. App. June 5, 2017), the Court of Appeals affirmed summary judgment in a health care liability suit, agreeing that “plaintiffs lacked sufficient expert testimony to establish their claims.”
Plaintiff patient had been treated for non-Hodgkin’s lymphoma in the 1990s, and he was subsequently monitored by defendant doctor. Part of the monitoring included checking plaintiff’s prostate specific antigen, or PSA. Plaintiff’s “PSA rose from 2.0 ng/mL in 2000 to 4.8 ng/mL in December 2002 and to 8.5 ng/mL in April 2005.” Plaintiff also complained of blood in his urine in both April 2002 and July 2004. In April 2005, based on the testing and plaintiff’s complaints of pain, defendant ordered an ultrasound, which “revealed findings consistent with benign prostate hypotrophy,” and defendant referred plaintiff to a urologist. Plaintiff saw defendant six times after this referral until August 2007, when his PSA measured 12.0ng/mL, and defendant “never inquired whether [plaintiff] had met with an urologist and did not make an additional referral.”
Six months later, plaintiff went to another doctor and was diagnosed with prostate cancer. He had a “radical prostatectomy,” and pathology reported the disease was “locally advanced with several high risk features.” Plaintiff “was considered at high risk for a local recurrence and distant metastatic disease.”
Plaintiffs filed suit on January 9, 2009 alleging that defendant’s “failure to timely diagnose” his cancer “caused further injury and a less favorable outcome.” Specifically, plaintiffs argued that defendant should have performed a “prostate biopsy when [plaintiff’s] PSA level rose to 4.8 ng/mL in 2002,” and that defendant “was negligent from November 2005 through August 2007 by not following up with him about his PSA scores or referring him to an urologist.”
In that first suit, defendant filed a motion in limine “to exclude expert testimony or opinions regarding any negligence that occurred prior to January 9, 2006, pursuant to the applicable statute of repose.” That motion was granted, and the case thus focused on the alleged negligent care by defendant from early 2006 to August 2007.
Plaintiffs initially disclosed two experts in the first suit, Dr. Rast and Dr. Allen. Dr. Rast, however, admitted in a deposition in 2012 that he had signed an affidavit in 2010 that did “not mention any deviation from the recognized acceptable standard of professional practice from [defendant doctor].” Dr. Rast testified that he had later formed an opinion about a deviation from the standard of care, but defense counsel objected on the basis that he was not notified of this newfound opinion. The parties reached an agreement in that case that Dr. Rast would not give an opinion regarding the sufficiency of defendant’s care.
Plaintiffs’ other expert, Dr. Allen, was also deposed in 2012. When asked whether the result would have been different if plaintiff had had surgery in August 2007 when his PSA was at 12.0 ng/mL, Dr. Allen said, “It probably would have been better than he had. How much better, hard to say….[C]ertainly there seemed to be some, you know, more aggressivity toward the end just prior to his diagnosis. So. Hard to say.” When asked whether the same treatment would have been offered if the surgery had happened in August 2007, Dr. Allen stated: “I would say that my guess would—I would lean towards saying that he probably would have had a slightly lower stage, pathological stage, and may not have had positive margins, might not have needed radiation. But I can’t say.” When asked to clarify whether he could not say “to a reasonable degree of medical certainty” that treatment in 2007 would have made a difference, he responded that he could not.
The first case went to trial, where there was an argument over whether Dr. Allen should be able to offer testimony not previously offered in his deposition. Before the trial court ruled, plaintiffs voluntarily nonsuited the case.
When plaintiffs re-filed suit in 2014, the trial court again excluded testimony regarding anything that happened before January 2006 due to the statute of repose. Plaintiffs disclosed the same two experts in the second suit and stated that “their prior depositions held the opinions each would offer at trial.” Defendant moved for summary judgment, asserting that plaintiffs’ “only expert, Dr. Allen, ha[d] expressed no opinion that [defendant] deviated from the standard of care after January 9, 2006,” and that there was no expert testimony that defendant, “to a reasonable degree of medical certainty, or more likely than not caused any harm to [plaintiff] that would not have otherwise occurred.” The trial court granted summary judgment, and the Court of Appeals affirmed.
In an HCLA case, a plaintiff must prove through expert testimony the recognized standard of care, a breach of the standard of care, and causation. The Court of Appeals first looked at plaintiffs’ expert Dr. Allen, noting initially that plaintiffs had “repeatedly claimed that Dr. Allen was not expected to offer causation testimony but would only testify concerning the applicable standard of care,” and that a “party may not offer a new issue for the first time on appeal.” Notwithstanding the potential that plaintiffs had waived the argument that Dr. Allen satisfied the expert testimony causation requirements, the Court found that “Dr. Allen did not offer sufficient causation testimony for the relevant time period.” The Court reasoned:
While we agree with Plaintiffs that expert witnesses are not required to use ‘magic words’ such as ‘reasonable degree of medical certainty’ in providing causation testimony, Dr. Allen specifically stated that he could not testify that surgery in 2007 would have made a difference. Plaintiffs note in their brief that Dr. Allen was not asked whether intervention in 2006 would have made a difference. We respond to this notation by directing Plaintiffs to review Rule 56.06 of the Tennessee Rules of Civil Procedure. When faced with a properly supported motion for summary judgment, Plaintiffs could have and should have offered evidence providing sufficient causation testimony. Plaintiffs failed to so respond.
Regarding Dr. Rast, plaintiffs’ other expert, plaintiffs asserted that “the court should not have limited [his] opinions to what was presented in the prior suit.” The Court responded with a similar analysis to the one for Dr. Allen, finding that “Plaintiffs were most assuredly not limited by Dr. Rast’s opinions in the prior suit. Plaintiffs simply failed to offer any new opinions for the court’s consideration at the summary judgment stage.”
Because plaintiffs had not offered any expert testimony regarding causation, summary judgment was affirmed.
This case is a great reminder to be both thorough in your response to a summary judgment motion and to not unnecessarily limit your expert’s testimony. Here, while plaintiffs’ expert had already offered unhelpful testimony about whether treatment in 2007 would have been beneficial, plaintiffs could have used expert testimony that treatment in 2006 would have changed plaintiff’s outcome to likely overcome the motion for summary judgment. Plaintiffs’ failure to provide enough proof in opposition to the summary judgment motion ended up being fatal to their claim.