Surgeon Prevails When Patient’s Expert Cannot Tie Injury to Allegedly Negligent Surgery
News: In 2018, a woman was diagnosed with a hernia in her upper leg. A mesh plug was inserted to reduce the risk of the hernia reoccurring. However, after surgery, the patient noticed the “hernia” remained. The “hernia” was determined to be a saphena varix, which is swelling connected to varicose veins.
The patient alleged she suffered from pain related to the “unnecessary mesh insertion.” She argued the surgeon was negligent by continuing to operate on her after discovering there was no hernia. The surgeon countered that he properly repaired a hernia and that there was a separate saphena varix.
The trial judge granted a directed verdict in the surgeon’s favor. The judge held the plaintiff did not link her injuries to the surgeon’s actions. Her expert witness did not prove her pain was caused by the surgeon’s negligence.
On appeal, the plaintiff argued the opposition obstructed her introduction of crucial medical records into evidence. If she could have introduced those records, her expert would have proven the link between the mesh plug and the patient’s pain.
The appellate court found there was no obstruction of evidence, and that expert’s testimony did not provide any evidence tying her pain to the mesh plug.
Background: In 2018, the patient was diagnosed with a hernia in her upper leg. A surgeon operated and inserted a mesh plug to reduce the risk of the hernia reoccurring. However, after surgery, the patient noticed the “hernia” remained. An ultrasound confirmed the mass was a saphena varix.
The patient sued the surgeon, alleging she suffered from pain related to the “unnecessary mesh insertion.” The patient alleged the surgeon acted below the standard of care by continuing to operate on her after discovering there was no hernia. The surgeon argued a hernia was present, separate and distinct from the saphena varix, and that he properly repaired the hernia.
At trial, the judge granted a directed verdict in favor of the surgeon. The judge held the patient had not linked her injuries to the surgeon’s actions. The case required expert testimony, but the plaintiff’s expert witness could not provide evidence her injuries were caused by the surgeon’s negligence. The plaintiff’s case was unwinnable without that evidence, so a directed verdict was proper.
On appeal, the plaintiff argued her expert could have provided evidence indicating the mesh plug caused her pain if he had been able to discuss medical records, which she claimed the defense obstructed. The plaintiff also requested a new trial because of the opposing counsel’s interference with authenticating her medical records.
The appellate court did not find either argument persuasive. The plaintiff’s expert did not provide any evidence tying her pain to the mesh plug. The trial court offered her counsel two options to authenticate her medical records, neither of which she took.
What this means to you: The failure to admit medical records was a big problem for the plaintiff’s case, as was the expert’s failure to directly address how the mesh plug caused the patient’s pain. In defending these kinds of cases, it is important for defendants and their counsel to force the plaintiff to honor the rules of evidence to admit their exhibits and to prove causation, whether through expert testimony or otherwise.
Evidence must be authentic to be admissible. The rules of evidence provide methods to authenticate documents. In this case, documents could be authenticated via stipulation of the parties or by calling the custodian of the documents as a witness to authenticate them. The parties stated multiple times they “anticipated” stipulating to the authenticity of the medical records. However, the documents the patient wanted to authenticate were in a different form from the documents the defendant possessed. The defendant refused to stipulate the different documents were authentic; however, he did offer to stipulate if the patient would correct the form of the documents. The patient never did; therefore, the surgeon never stipulated the patient’s documents.
The court ruled the defendant’s refusal to stipulate was proper. The patient never provided an exhibit list or copies of the documents she wanted to admit. The defendant had the right to ensure the plaintiff’s records were the same as the records in his possession. Refusal to stipulate was not malicious, especially when the plaintiff had other methods available to authenticate the medical records.
The authentication issue in this case highlights two simple steps the plaintiff could have taken. First, she could have provided copies of the documents to opposing counsel before trial and obtained a stipulation before the trial date. Second, if she had sought a stipulation before trial, and if the defendant refused to stipulate, then she could have called the document custodian at trial to authenticate the documents. This was particularly important for the patient because the document custodian likely would have to be subpoenaed. In contrast, the surgeon could have obtained the custodian’s testimony without a subpoena or authenticate some documents himself because he was the person who made the documents.
The plaintiff argued the failure to stipulate hamstrung her case because her expert could not refer to the medical documents during her case in chief. The court disagreed, ruling her expert’s testimony did not sufficiently allege the mesh plug caused her pain.
To prevail in a malpractice claim, the plaintiff must establish the standard of care, a negligent failure to give treatment in conformity with the standard of care, and that the injury was caused by the defendant’s negligent failure. Here, the malpractice statute required the causal element to be established by expert testimony to a “reasonable degree of medical probability.” The patient’s testimony on causation was irrelevant.
The plaintiff’s expert testified the injury was “anything related to the mesh placement. So pain at the site of the mesh in that area would be due to the negligence.” This testimony, without more, did not rise to a reasonable degree of medical probability. Moreover, the expert’s other testimony did not tie any specific injuries to the mesh plug. The expert testified the plaintiff’s body “reacted” to the mesh plug but did not tie any inflammation or pain to the mesh plug. The court found this particularly troubling considering the patient’s chronic pain and other conditions. Here, the pain occurred months after the surgery, and the patient suffered from endometriosis, pelvic pain, and fibromyalgia. She also had painful varicose veins and constantly wore compression socks. She saw a pain management physician for her long-standing, debilitating pain, and saw a vascular surgeon for leg pain. Considering these afflictions, and others, her expert’s general testimony was insufficient to establish the pain was caused by the mesh plug.
Finally, some medical observations are in order. A hernia occurs when a portion of intestine protrudes through the abdominal muscles. It usually presents with pain and a visible or palpable bulge, most commonly in the inguinal or femoral area of the groin (although other areas of the abdominal wall can be affected, such as the umbilical region). The intestine does not usually migrate low enough to present as a hernia in the leg, but in this case, if it had, a mesh implant to reposition the intestine and close the abdominal muscle that had weakened would be appropriate. This condition would have been seen in diagnostic studies, such as a CT scan or ultrasound. A confirmatory diagnosis should have been obtained before surgery, especially due to the unusual location of this hernia. If, on seeing the actual surgical site, the surgeon realized that there was no hernia, he or she should have stopped the procedure and inform the patient. Without medical record evidence to support the physician’s claim the hernia existed, or the patient’s claim the mesh was not needed due to the absence of a hernia, the case could not move forward.
While every healthcare facility is required to establish a medical record department under the leadership of certified and qualified medical record professionals who are the legal custodians of the medical records and are trained to serve that purpose in a court of law, it is incumbent on the plaintiff to develop that evidence in pretrial discovery and have it ready to present at trial.
- Decided March 23, 2023, in the Eighth Appellate District of Ohio, Case Number CV-19-919242.
The failure to admit medical records was a big problem for the plaintiff’s case, as was the expert’s failure to directly address how the mesh plug caused the patient’s pain. In defending these kinds of cases, it is important for defendants and their counsel to force the plaintiff to honor the rules of evidence to admit their exhibits and to prove causation, whether through expert testimony or otherwise.
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