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Plaintiff’s Experts Allowed on Spinal Fracture

A woman injured in a car accident who is suing defendants for medical malpractice in failing to immobilize her unstable spinal fracture and ordering physical therapy without performing CT scans or film studies, may use expert testimony from a board-certified internist and a board-certified neurosurgeon, says the Roanoke U.S. District Court.

Plaintiff claims the four treating physicians committed malpractice by failing to immobilize an unstable spinal fracture, failing to order serial images (CT scans or film studies) that would have revealed the instability and deterioration of the fracture, and failing to refer her to a iiispinaliii specialist. According to plaintiff, had the physicians immobilized her fracture (or referred her to a spinal specialist who would have immobilized her), her condition never would have worsened, and she never would have needed fusion surgery. She offers two medical experts in support, Drs. Gary A. Salzman, a board-certified internist, and Deepak Awasthi, a board-certified neurosurgeon and spinal specialist.

Four defendants move for summary judgment, arguing that under Virginia law, plaintiff’s proffered experts are not qualified to testify as to the requisite standard of care and fail to establish causation.

The court finds that both Drs. Salzman and Awasthi are qualified to testify as to the applicable standard of care. Dr. Salzman is certified to practice in internal medicine and testified by deposition that he treated approximately one to two patients with thoracic compression fractures per year. Similarly, Dr. Awasthi is certified to practice in neurosurgery and testified that, in his practice, he diagnosed and treated patients with spinal compression fractures every month. Both experts also testified by deposition that they performed the procedures at issue under the same standard of care as defendants against whom they will testify. The proffered experts have satisfied the requirements of Va. Code § 8.01-581.20.

Two defendants claim that a different standard of care applies to a physician in a rehabilitation (sub-acute) setting than a physician in a hospital (acute) setting. The key inquiry for the qualification of an expert is not normally the location of the treatment but whether the expert possesses sufficient knowledge and experience with the procedures at issue. Plaintiff has offered the experts to testify about procedures with which they have personal experience. They will testify whether it is standard procedure to order and/or review imaging studies for a spine fracture before implementing a physical therapy regimen, whether immobilization in a rigid brace is necessary and when consulting a spine specialist would be appropriate. Such procedures are not peculiar to an (acute) hospital setting.

The court also rejects defendants’ arguments that Dr. Awasthi’s expert opinions on causation are not admissible. It is of no consequence that Dr. Awasthi was unable to say exactly when plaintiff’s fracture worsened.

In the alternative, defendants argue the experts should not be allowed to testify about a standard of care in an area that is different from their specialty. An expert needs no particular certification or formal title in order to testify as to the standard of care if he otherwise has the requisite qualifications and expertise. The experts may testify as to procedures that overlap and are common to their specialty, such as whether or not to perform imaging studies or to make a referral. They also may testify as to what, in their experience, the specialist would likely do following referral.

Motions in limine are denied.

Tripiciano v. Hale (Wilson) No. 7:13cv254, April 23, 2014; USDC at Roanoke, Va. VLW 014-3-226, 9 pp.

VLW 014-3-226

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