You may have a viable medical malpractice claim. A doctor or another medical professional—through negligence—caused you or your loved one harm. What’s next?
You find an attorney to take your case, and that attorney finds a doctor who will testify in your favor. The case seems to be moving along until this happens: your medical expert is challenged by the defendant. Turns out, your case is a complex one requiring a medical expert with specific knowledge or special training.
The defendant is successful, the case is dismissed, and you lose the compensation you deserved. Even on an appeal, you still lose because the appellate court affirms the lower court’s finding.
The same could happen whether it’s a personal injury case or a wrongful death case because they all require expert witnesses to confirm the injuries and, among other things, explain your prognosis or identify what the actual cause of death was. Just recently in California, this happened: a plaintiff in a wrongful death suit against a nursing home for failure to timely treat a stroke of a 92-year-old woman lost the case because of the medical expert.
An Example of When a Plaintiff Fails to Obtain the Right Expert Witnesses
Ruth Goros sued Kindred Healthcare Operating, Inc. and Care Center of Rossmoor, LLC for violating the Elder Abuse and Dependent Adult Civil Protection Act. Goros claims the defendants committed elder abuse, willful misconduct, fraud, battery and failed to
timely obtain medical treatment for her after she suffered a stroke while a patient at their nursing home.
After her death, her daughter Diane Lowery substituted in as successor in interest and added a wrongful death claim.
The outcome of the case came down to the medical experts.
The Defendant’s Medical Expert
The defendants moved for summary judgment, stating the plaintiff could not prove its case and particularly could not prove causation. The defendants submitted testimony by a neurologist with 30 years of experience. In its March 20, 2020 Opinion of Lowery v. Kindred Healthcare Operating, Inc., the Court of Appeals of California, First District, Division Four, stated that Dr. Bruce Adornato, M.D.
opined that no act of defendants caused the stroke and that the time that elapsed between the stroke and Goros’s ultimate arrival at the hospital had no bearing on the outcome. According to Adornato, Ms. Goros’s stroke was not preventable and was caused by her atrial fibrillation. …
Adornato opined that no act of defendants caused the stroke and that the time that elapsed between the stroke and Goros’s ultimate arrival at the hospital had no bearing on the outcome. According to Adornato, Ms. Goros’s stroke was not preventable and was caused by her atrial fibrillation. Adornato opined that Ms. Goros was not a candidate for tissue plasminogen activator (TPA) to dissolve the clot… (emphasis added).
The Plaintiff’s Medical Expert
The Plaintiff submitted testimony of Lawrence S. Miller, an expert in “physical medicine, rehabilitation, geriatrics and pain disorders. In the Opinion, it states that
Miller claimed that the stroke was not caused by atrial fibrillation, but he did not identify its cause. He opined that “Ms. Goros was a candidate for TPA” and that TPA given within three hours of the stroke “would have provided the opportunity to have the effects of the stroke dramatically reduced and the severity of the stroke would not have contributed to the cause of her death like it did in this instance.” He also opined that the failure of the nursing home staff “to immediately transfer Ms. Goros to an acute care hospital after exhibiting symptoms of an ischemic stroke was grossly negligent and constituted elder abuse.” (emphasis added).
The Court’s Finding on the Medical Experts
The Court found that Miller’s opinion was
deficient to raise a triable issue of fact as to causation.
The Court further went on to say that Dr. Miller is a physiatrist who cannot trace the ischemic stroke back to atrial fibrillation. Further, the Court said that Dr. Miller could not explain
how his training and experience qualifies him to give an opinion on neurological events such as the cause of an ischemic stroke.
The Court went on to say how Dr. Miller did not address matters brought up by the defendant’s expert witness and does not cite reasons for his opinion.
On the one hand, you have the defendants with a qualified medical expert who has training specific to the injury and who cites reasons for his explanations. Then, on the other hand, you have the plaintiff’s expert who does not have specific training and does not cite medical reasons.
How Do You Know if an Expert Witness is Qualified for Your Case?
You really don’t know if your expert witness is qualified unless you are in the medical field yourself or have the experience working with medical experts in these types of cases. Thus, in large part, you will have to depend on your attorney. That’s why it is so important in Pennsylvania or Maryland, if you have a medical malpractice claim, to find not only medical malpractice attorneys who care and are committed but those who will use the right resources and retain the best experts. It’s key to getting what you and your family deserve.
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