By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N Sandell, JD

UCLA School of Law, 2018

News: A state court of appeals upheld a directed verdict in favor of healthcare providers whose allegedly substandard care of a newborn with Rh disease had resulted in the child suffering physical injuries, including blindness. The child’s parents argued that given the specific risk factors discovered by the obstetrician early and given that the newborn’s cord blood indicated Rh positive blood, the physicians treating the child should have used a higher standard of care.

The trial court found that the plaintiff’s expert witness had not provided sufficient testimony to satisfy the plaintiff’s burden of proof. In particular, the lower court asserted that the plaintiff’s expert witness failed to define the required standard of care and to demonstrate familiarity. Thus, the trial resulted in a directed verdict in favor of defendants, and the appellate court affirmed that the plaintiff did not provide sufficient evidence.

Background: In 2004, an expectant mother’s obstetrician learned early on in the pregnancy that the mother’s blood type was O negative and anti-D positive. This should have led the obstetrician to consult with a hematologist and carefully monitor the condition of the newborn before and during delivery. Within 24 hours of the child’s birth, testing on the newborn’s cord blood revealed she was Rh positive, indicating a hemolytic disease. Furthermore, a blood test revealed that the child’s total serum bilirubin (TSB) was 9.2. The same day, the child underwent phototherapy after she developed jaundice.

Many years later, the child’s parents filed suit against the physicians, alleging that the factors indicating their child was at high risk of suffering from severe neonatal hyperbilirubinemia were present before, during, and after her birth. The parents argued that physicians should have acted promptly and treated their child’s blood disease before she developed severe neonatal hyperbilirubinemia, which caused her to suffer physical injuries including blindness.

The plaintiffs presented expert testimony to support their claims. Their expert explained that modern-day medical testing allows for prompt diagnosis of Rh disease, and that if treated in a timely fashion, the condition should not lead to the development of such severe hyperbilirubinemia. The expert further testified that the disease is preventable by paying proper attention to bilirubin levels.

However, the expert witness was a pediatric neurologist who had no specialization as either a hematologist or an obstetrician. When asked by the defendant’s counsel whether in his specialty he would have ever treated an infant in the above-described situation, the expert replied “absolutely not.” When questioned as to what the proper course of treatment should have been and what the applicable standard of care was in such a situation, the expert proffered that the obstetrician should have consulted immediately with a hematologist and that the nursing staff should have been trained on how to monitor the signs of Rh disease in order to prevent injuries to the newborn.

Also, the expert failed to explain the specific course of treatment that should have been followed and how the defendant physicians’ conduct deviated from such standard. The court found that the expert witness’ lack of specific expertise in this particular field of medicine combined with his insufficiently detailed testimony did not meet the necessary burden of proof borne by the plaintiffs, as the expert failed to establish the specific duty of care and to demonstrate a breach of such duty. As a result of the expert’s deficiencies, the trial court granted and entered judgment in favor of the defendants through a directed verdict, which does not require any jury determination based on a party’s insufficient evidence.

What this means to you: The most important lesson to be learned from this case is that choosing the right expert is crucial — and selecting the wrong expert can be fatal to a party’s case. The testimony of expert witnesses plays a central role, and all parties involved should select their witnesses with extreme care, knowing that the testimony of a single witness may turn the entire outcome of the matter in one direction or another.

A physician serving as an expert witness will be able to present a more convincing argument if he or she is specialized in the field of medicine at issue in the case, has extensive personal experience treating patients with the same condition or presenting the same symptoms, and is an active member of the medical community at the time of trial. Previous experience as an expert witness and familiarity with the legal processes also are helpful. However, an expert whose livelihood relies solely upon testifying as an expert may be seen as a “hired gun” and undermined based upon his or her lack of actual practicing of medicine. A balance is thus recommended, and this is only one consideration when determining which expert is right for the case.

Another lesson from this case is whether an expert witness testifying in a medical malpractice case needs to be personally knowledgeable as to the applicable standard of care and, further, present some evidence as to such standard that goes beyond mere opinion. The latter is especially interesting given that expert testimony by nature relies on personal opinion of the testifying expert, and there are multiple examples of cases where physicians specializing in the same field of medicine presented contrasting views as to the correct treatment plan that should have been followed.

In its reasoning, the state court of appeals discussed the general standards for plaintiffs in medical malpractice cases concerning the duty of care, breach of that duty, and injury caused by the breach. A standard procedure to review claims of medical malpractice is to have the conduct reviewed by a board of medical experts prior to litigation. Upon conclusion of the review process, the board delivers an opinion as to whether the alleged conduct breached the duty of care. In this case, the board did not find the physician’s conduct substandard and concluded no breach of the standard of care occurred. Thus, to satisfy their burden of proof, the plaintiffs should have introduced expert medical opinion testimony to rebut the medical review panel’s findings.

However, the expert testimony presented by the plaintiffs merely stated that the expert physician would have treated the condition differently; it did not explain how the defendant’s conduct consisted of a breach in the standard of care. Absent testimony to the contrary, it is possible that there are multiple methods for properly treating a condition, and that those multiple methods satisfy the standard of care. Thus, expert testimony about a possible alternative treatment does not necessarily mean that the treatment used constitutes malpractice.

Additionally, the plaintiff’s alleged expert admittedly had no practice, experience, or education in obstetrics or hematology, and did not show the necessary level of expertise required for this particular case and circumstances.

The expert made other damaging admissions to the parents’ case and to his position as an expert: He admitted he had never handled the handover between an obstetrician and a pediatrician after a child was born; he would not have been the right physician to follow plaintiff’s pregnancy and delivery of her child; and he currently was a retired neonatal neuropathologist who primarily offered consultation services.

Taking into account all of the above, the court of appeals found that the trial court did not abuse its discretion in ruling in favor of the defendants. It is plausible that had the parents found a more appropriately qualified expert to support their arguments, the outcome of the case would have been different. While the question as to the required standard of care remained unanswered given the deficient expert testimony, it apparently was not disputed that the child suffered permanent physical injuries including blindness. To the extent that the expert’s testimony regarding the preventability of such injuries was accurate, it is likely that a physician specialized in obstetrics or hematology would have been able to provide a more accurate and convincing opinion as to how the treating physicians violated their duty of care toward the patient.

Ultimately, the defendant physician in this case won by undermining the expertise and appropriateness of the opposing party’s expert, which is a significant accomplishment.


Decided on Feb. 21, 2019, in the Court of Appeals of Indiana, Case Number 18A-CT-582.