News: A woman died in a rehabilitation center from a pulmonary embolism two weeks after she was admitted to the facility. The patient was admitted for additional surgical procedures following a surgery to repair the infected quadriceps on her right knee.

The patient’s estate filed a lawsuit against the facility, alleging the negligence of the nursing staff led to improper treatment, resulting in loss of life. The trial court dismissed the case, determining the plaintiff’s expert witnesses were not qualified to testify. However, the appellate court partially reversed the trial court, finding the court had improperly excluded the testimony of the expert.

Background: On July 16, 2014, a woman died while at a rehabilitation center from a pulmonary embolism caused by a dislodged deep vein thrombosis (DVT).

According to the plaintiff, the treating physicians failed to recognize the patient’s mobility was compromised while at the facility, leading directly to the failure to provide proper prophylaxis against DVT by prescribing an oral or injectable anticoagulant. Furthermore, the plaintiff claimed the nurses failed to report the patient’s immobility to the relevant physician and institute a DVT prophylaxis protocol.

During litigation, the plaintiff offered testimony from three medical professionals presented as experts. However, the defendants challenged these qualifications. The court determined two of these individuals were not qualified experts for this case. Due to lack of sufficient expert testimony, the court granted a motion for judgment in favor of the defendant. The court did not attribute substantial weight to the third remaining expert.

The plaintiff appealed the decision, alleging the trial court’s disqualification was improper and disregarded issues relating to causation. The appellate court considered legislative guidance on parameters for considering the qualification of expert witnesses. According to state laws, experts are required to have supervised, taught, or instructed nurses on the standard of care required under the circumstance at issue for three out of the previous five years. One of the disqualified experts expressly testified their practice involved regular interactions with nurses (including lectures), but they had not supervised nurses in more than a decade. The appellate court agreed with the trial court, noting it was the prerogative of the trial court to determine the eligibility of the expert witness — which, in this case, was inadequate.

The plaintiff claimed the second expert witness was qualified to testify, as the nurse had years of experience caring for patients at risk of DVT.However, given further scrutiny of the nurse’s curriculum vitae, no testimony was provided showing the nurse possessed the knowledge and skill needed to manage a rehabilitation patient at risk of DVT. The appellate court similarly affirmed the disqualification of this proffered expert witness.

Finally, on the issue of the summary judgment in favor of the facility, the appellate court disagreed with the trial court. The trial court claimed there was nothing in the records to indicated whether the treating physician would have acted differently if informed of the patient’s immobility. The treating physician’s testimony influenced this conclusion when he stated he was aware of the numerous risk factors for DVT. The physician claimed he refrained from using anticoagulants because of the risks they posed. The physician testified he initially assessed the patient’s risk of DVT to be low. He noted anticoagulants could amplify any injuries the patient could sustain, as she was a fall risk. The remaining plaintiff expert witness testified the patient’s immobility was a significant factor for DVT, and the nurses were obligated to inform the physician.

The appellate court ruled the trial court failed to properly consider the testimony of the qualified expert witness. According to the appellate court, this determination was beyond resolution by the trial court at this stage. The plaintiff presented evidence from a qualified expert stating one position, while the defendant presented evidence to the contrary. The appellate court overruled the trial court’s decision, noting the resolution of this conflicting evidence was proper for a jury to determine.

What this means to you: As often is the case, expert witnesses regularly play a pivotal role in medical malpractice actions. A foundational matter is whether an individual may qualify to serve as an expert witness. It can be extremely powerful for either party to challenge the other side’s prospective experts.

There are lessons to be learned for care providers for both the offensive and defensive aspects of expert witnesses. Offensively, when a medical malpractice plaintiff presents a “weak” expert who lacks the necessary background, or perhaps who has not practiced recently, it is critical to bring a timely challenge to prevent an unqualified individual from offering inaccurate or damaging testimony. Defensively, it is important for care providers to evaluate their own prospective experts and to select individuals who are protected from such challenges. Plaintiffs are likely to bring their own attempts to disqualify experts. It is crucial to objectively evaluate a prospective expert’s background and ability to testify calmly and credibly. There are numerous individuals who claim to be experts in their respective fields. While many actually are experts, not all possess the same qualifications or same ability to testify in front of a jury. Selecting the right expert, and challenging an opposing party’s inadequate expert, are necessary in the vast majority of medical malpractice cases.

Courts are the “gatekeepers” when it comes to expert witnesses and their qualifications. As an initial matter, a party whose expert is challenged must sufficiently demonstrate to a trial court judge that the individual is appropriate to provide expert testimony for the issues raised in each case. A trial court judge can resolve disputes about an expert’s qualifications to protect the jury from inaccurate, irrelevant, or misleading information.

In this case, the underlying issue related to DVT, and the experts provided conflicting testimony. There are many ways to prevent DVT that do not involve administering anticoagulants. Alternating pressure devices can be worn on the lower extremities to maintain a continual return of venous blood upward to the heart. Pressure hose or stockings also are available and serve much the same purpose. Decreased mobility is common for hospitalized patients, and prevention of DVT is a standard of care that is quite routine in all types of care facilities. Failure to ward off the DVT and its devastating consequences can result in a finding of negligence on the part of all professionals involved in the care of this patient.

Beyond the providence of experts, another lesson from this case is that in medical malpractice actions, the issue of causation is a regular occurrence. Unlike determining the qualifications of experts, causation is appropriately considered by a jury, not a judge. Causation is more frequently an issue of fact where both sides present different versions of events, claiming various acts and circumstances contributed to the patient’s injury. Care providers regularly use expert testimony and other evidence to argue other factors contributed to the patient’s injury, and the defendant care provider’s actions had no effect. In this case, both sides presented conflicting positions, and it was not the court’s job to resolve that dispute. This is an important procedural point, too: When a trial court exceeds its authority, care providers should consult closely with counsel to determine the proper method for reviewing and overturning that exceeded authority.

REFERENCE

  • Decided July 1, 2021, in the Court of Appeals of Georgia, Case Number A21A0578.