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Expert Witness Accused Of Making False Assertions

An appeals court has dismissed a medical malpractice case in New York City. The plaintiffs represented the estate of Gladys Vargas, a patient at St. Barnabas Hospital in the Bronx who has since passed away. While in the care of the defendants Ms. Vargas allegedly developed sacral decubitus ulcers, also known as bedsores. The claim stated that the defendants were negligent and also contained many assertions from an expert witness that were determined to be untrue. The appeals court panel voted unanimously and stated that the claim did not show proximate cause.

Witness Credibility

The panel felt the expert did not meet the requirements necessary to provide testimony relating to pressure ulcers. The ruling by the court also pointed out a host of misstated facts and inconsistencies in the evidence presented by the expert. The testimony apparently characterized the plaintiff as being “relatively healthy” and did not accurately describe the patient’s comorbidities. The expert did not respond to assertions by the defense that it was necessary for the patient to be elevated within her bed. The expert’s summary proposed a previously not disclosed theory of liability in the claim. This was that the hospital had demonstrated a failure in discharge planning.

Plaintiff Requests Frye Hearing

St. Barnabas is a 420-bed facility that is part of the South Bronx Health System. The plaintiffs argued that a Frye hearing was appropriate to evaluate the credibility of a defense expert. The court denied the request stating that the expert based his theory on “generally accepted scientific principles” according to statutory requirements.

Pressure Ulcers

Skin ulcers result from prolonged periods of pressure and are often called bedsores. The tissues within the skin become damaged and are commonly seen in areas near a bone such as the ankles and hips. The condition is most common among those in inpatient medical settings such as hospitals and nursing homes. Individuals that have limited mobility may spend hours at a time resting in the same position in their bed or sitting in a wheelchair. The staff is generally tasked with repositioning those who have limited mobility to avoid the development of pressure ulcers. Bedsores tend to develop as follows:

  • For those in wheelchairs:
    • Near the buttocks or tailbone
    • Along the back of the arms and legs when resting continuously in the chair
    • Near the spine or shoulders
  • For those confined to a bed:
    • On the rear or sides of the head
    • Region behind the knees
    • In the hips or lower back region

Medical Expert Qualifications

Testimony from medical experts is generally critical in claims of medical malpractice. They are needed to explain how a medical professional deviated from or failed to adhere to the current standards of care in a given profession. Courts require that expert witnesses have some established qualifications in order to offer their insight and opinions. Experts are typically required to be active in the same field as those practitioners that they are evaluating. One formal standard regarding expert admissibility is the Frye Standard. It requires that scientific evidence is “generally accepted” by those professionals working in a particular profession.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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