Plaintiff’s Failure to Follow Expert Disclosure Deadlines Results in Judgment for Defendants
News: An Ohio Court of Appeals affirmed a trial court’s grant of summary judgment to defendant physicians and a hospital in a medical malpractice case after the plaintiff failed to file his expert disclosures by the court’s deadline. After the plaintiff missed the deadline by a month, the defendants moved for summary judgment, asserting that without an expert witness, the plaintiff could not prove his case. Expert witnesses are necessary to establish the standard of care the plaintiff claims the defendants breached, the defendants argued. The trial court agreed, as did the appellate court that reviewed the case.
This case is an important reminder that seemingly routine issues such as deadlines for disclosures can have major effects if they are not followed. It also is a reminder that trial courts have a lot of discretion to manage their cases as they see fit, especially when it comes to issues such as setting deadlines for the case and sanctioning parties for failing to adhere to those deadlines.
Background: The plaintiff alleged that after a physician performed surgery on his left knee, the physician failed to fully close the incision. The plaintiff claimed this failure to close the incision led to his knee continuing to bleed and required a trip to the emergency department, where physicians stopped the bleeding and bandaged his knee. The plaintiff alleged that after he went home, his knee continued to bleed through the bandages, and later that evening he returned to the hospital by ambulance. There, another physician used collagen powder to stop the bleeding. The plaintiff claimed that despite this, the bleeding continued, and he developed a fever and an infection in his knee. The plaintiff underwent another surgical procedure on his knee, a “joint wash out” surgery, and a knee replacement.
The plaintiff filed a complaint against the hospital and physicians who treated him, claiming medical malpractice for failure to properly close his incision, among other causes of action. The trial court set a deadline for the plaintiff to file his expert disclosures and reports. The plaintiff missed the deadline. The defendants then moved for summary judgment, arguing that the plaintiff should be barred from using any experts at trial because he missed the deadline to disclose them. Although the plaintiff then immediately filed his expert disclosures, the trial court found that they were filed too late to be considered and granted the defendants’ motion to strike them. Without experts, the plaintiff could not prove his case, and the court granted summary judgment to the defendants.
On appeal, the court agreed the trial court correctly granted a motion to strike the late-filed expert disclosures from the docket. The appellate court emphasized that trial courts have a great deal of discretion to manage their dockets, set deadlines in the case, and grant sanctions as they see fit. The appellate court also agreed the trial court correctly granted summary judgment to the defendants. In opposing summary judgment, the plaintiff argued he did not have to use expert reports because he could show the negligence through other medical records and bills. However, the trial court struck those medical records from the docket, so they could not be used for a trial. The plaintiff also claimed he does not need an expert witness because a jury could understand the issues in the case without one. On this point, the appellate court stated that an expert witness was necessary to establish the standard of care of the medical community, and failure to establish that standard of care is fatal to a case of medical malpractice. The court found the standard of care regarding closing the incision on the plaintiff’s knee also did not meet the narrow exception to that rule, where the lack of skill or care of the physician is evidence that it is within the comprehension of laymen.
What this means for you: As an initial, medical point, surgeons who often ask physicians in training to close surgical wounds after the procedure should take care to confirm the skill of the trainee and the quality of the result. But if such a procedure (or any procedure) leads to a medical malpractice case, experts are essential. For plaintiffs, they are required, at a minimum, to establish the standard of care in the medical community that the plaintiff alleges the medical practitioners breached. The plaintiff must identify a good expert witness who can submit a strong expert report as well as ensure the expert’s testimony will be admissible in front of a jury. But this case is a reminder that before the plaintiff’s counsel can be concerned with any of that, he or she must calendar all the deadlines. As it turns out, ignoring routine deadlines, such as those for the disclosure of expert witnesses, can be just as important to the case as retaining an unqualified expert whose opinion is inadmissible.
As the appellate court noted, trial courts deal with a lot of routine issues. Among those is the basic role of setting deadlines for a case to keep it moving along and ensure the parties are preparing for trial. Trial courts also have a great deal of discretion in penalizing parties for failing to adhere to such deadlines and otherwise failing to comply with the court’s orders. These penalties are called “sanctions” in the legal world. When a party such as the plaintiff here asserts the trial court made the wrong decision in managing its docket, the appellate courts are deferential to the decision-making of the trial court. In Ohio and many other states, the appellate courts will only overturn such a management decision for what it calls an “abuse of discretion.” In practice, this standard allows trial courts broad leeway, and they will only be overturned for serious errors — which were not present in this case. As the Ohio appellate court explained, to constitute an abuse of discretion, a trial court’s decision must be “arbitrary, unreasonable, or unconscionable.” That is a high standard to meet.
Attorneys also should note it was not inevitable that the plaintiff’s failure to disclose his experts on time would result in such a harsh penalty. The appellate court noted the plaintiff did not seek leave from the trial court to file the disclosures late, but instead just filed the disclosures late. Nor did the plaintiff offer good reasons for the failure to file before the deadline, instead offering reasons as to why the late filing did not matter. Had the plaintiff offered some good reasons for the oversight, and properly asked the court to file the disclosures late, it is possible that his request would have been granted. One of the appellate court judges wrote in a concurrence that if the plaintiff had bothered to request from the court permission to file the disclosure of expert witnesses late, it would have been an abuse of discretion by the trial court to deny that request. The failure to seek leave to file the disclosures late was an unforced error and one that compounded the original error of failing to file the disclosures in the first place.
Beyond the procedural fumbles made by the plaintiff in this case, counsel should be reminded that expert witnesses almost always are necessary to establish the standard of care in medical negligence cases. On appeal, the plaintiff argued that the failure to close an incision requires no expert witness because it is comprehensible by laymen without one. The appellate court reviewed the medical negligence cases where a court found that no medical expert was necessary. The justices concluded those cases mostly involved issues involving a failure of medical staff to supervise the patients in situations where, for example, a patient fell out of a bed without any guardrails. In other words, medical negligence cases that do not require expert testimony to establish the standard of care are those where anyone could tell that the actions of a physician do not comport with common sense. Those are few and far between. The lesson here is that counsel always should assume that they have to offer an expert witness in medical negligence cases and put the appropriate amount of importance on that.
For attorneys, the result in this case should be a cautionary tale. What began as a failure to adhere to disclosure deadlines ended with the dismissal of the plaintiff’s whole case. What began in a medical malpractice lawsuit has ended in what may become a legal malpractice suit.
- Decided Oct. 20, 2023, in the Court of Appeals of Ohio, Second Appellate District, Montgomery County, Case No. 29687.
As an initial, medical point, surgeons who often ask physicians in training to close surgical wounds after the procedure should take care to confirm the skill of the trainee and the quality of the result. But if such a procedure (or any procedure) leads to a medical malpractice case, experts are essential.
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