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Supreme Court draws boundaries for medical experts

supremecourtofvirginiabuilding_mainOne expert should have been heard; another was heard but fell short on linking negligence to damages.

Those were the rulings from the Supreme Court of Virginia last month in two medical malpractice cases that help define standards for expert witnesses. In one case, the court overturned a $625,000 jury verdict for a woman who suffered a bowel injury during a laparoscopic procedure.

[In a third medical malpractice case, the justices addressed evidentiary issues. See below]

Bowel perforation

A Norfolk judge should have tossed the patient’s case for lack of causation evidence, the court ruled in Dixon v. Sublett (VLW 018-6-007), reversing a $625,000 award and entering judgment for the defendant doctor.

Patient Donna Sublett underwent a laparoscopic total hysterectomy by OB/GYN Mary Beth Dixon. Complications ensued and, two days later, a general surgeon performed open surgery. The general surgeon found and repaired a bowel injury.

Sublett had one expert, OB/GYN physician Jeffrey Soffer. He said Dixon had been negligent in failing to spot the bowel injury in the laparoscopic procedure. “If she had done it correctly and diligently, she would have noted that there was a hole,” Soffer testified.

Judge Michelle J. Atkins refused to allow Soffer – the OB/GYN expert – to testify that a general surgeon most likely would have fixed the injury laparoscopically if it were discovered promptly. Soffer was allowed to testify only that, had Dixon discovered the bowel injury, she should have immediately consulted a general surgeon.

Regardless of Soffer’s limited testimony, the jury found in favor of the patient.

In its decision, authored by Justice Cleo E. Powell, the unanimous Supreme Court said the expert’s opinion was inadequate to show that any negligence caused further injury.

Sublett “failed to present any testimony from an expert witness to identify what a general surgeon would have done if immediately consulted about the perforated bowel,” Powell wrote. Sublett also left the fact finder to wonder whether her outcome would have been any different with an immediate consult, the court said.

“Sublett did not prove causation and was unable to do so from the evidence presented to the circuit court,” Powell wrote.

Sublett was represented by Mark J. Favaloro of Virginia Beach, who said he planned to ask the court to reconsider. Dixon and her practice groups were represented by A. William Charters of Norfolk, who did not respond to a request for comment as of press time.

Newborn’s obstructed airway

In a second medical malpractice appeal, the roles were reversed. Retired Circuit Judge Herman A. Whisenant Jr., sitting in Fauquier County, refused to allow a plaintiff’s expert to take the stand. The high court reversed and gave a child with a brain injury another chance at recovery.

The decision clarifies that the Supreme Court applies a stricter standard of review for a judge’s exclusion of a medical malpractice expert than with experts in other cases.

The case is Holt v. Chalmeta (VLW 018-6-010).

Kayla Holt was born at Fauquier Hospital with nasal stenosis which caused respiratory distress shortly after birth. Pediatrician Diana Chalmeta was unsuccessful with a nasal catheter insertion and had the infant placed in an “oxyhood” to provide extra oxygen. After another unsuccessful catheter insertion, Chalmeta arranged for a transport to the University of Virginia.

By the time Kayla received a procedure to enlarge her nostril size at U.Va., she had suffered a hypoxic brain injury.

Kayla’s mother, Michele Holt, brought only one witness to trial, a pediatrician and neonatologist licensed in Virginia. Whisenant agreed with the defendant that Holt failed to show her expert knew the applicable standard of care and had an active clinical practice in the field. Lacking an expert, Holt saw her case dismissed.

In an opinion penned by Justice S. Bernard Goodwyn, the Supreme Court said the usual “abuse of discretion” standard for a trial judge’s witness decisions did not apply in the medical malpractice field.

In med mal cases, “we will overturn a trial court’s exclusion of a proffered expert opinion ‘when it appears clearly that the expert was qualified,’” Goodwyn wrote, citing a 2002 Supreme Court decision.

Holt’s proffered expert qualified for the statutory presumption that she knew the applicable standard of care. To overcome the presumption, Chalmeta had to show either a lack of knowledge of the standard or absence of an active clinical practice at the relevant time.

The court first found that the expert met the knowledge prong. She testified that all pediatricians, regardless of setting, should be able to assess the severity of respiratory distress, decide whether and how to secure an airway and obtain the proper level of care. She said it made no difference whether the setting was a NICU or non-NICU facility.

As for the “active clinical practice” prong, even under a stringent “actual performance of procedure test,” the expert made the grade.

“The record clearly demonstrates that within the one-year timeframe, [the expert] was engaged in an ongoing clinical practice,” Goodwyn wrote. “That practice involved the procedure that Dr. Chalmeta is alleged to have performed negligently, assessing and determining treatment for newborns with respiratory distress.”

Holt was represented by Laura J. Johnston of Locust Grove. Frank K. Friedman of Roanoke argued the appeal for Chalmeta. Neither responded to requests for comment as of press time.

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