Day on Torts - New Post: Inconclusive Causation Testimony Insufficient – Case Dismissed

Inconclusive Causation Testimony Insufficient – Case Dismissed

Posted: 12 Feb 2020 04:21 AM PST

Where a plaintiff’s expert testimony in an HCLA (formerly known as medical malpractice) case was deemed to be “ambiguous and inconclusive” regarding causation, summary judgment for defendant was affirmed.

In Bridges v. Lancaster, No. M2019-00352-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2019), plaintiff had surgery performed by defendant doctor to put an arteriovenous graft in her upper left arm. In recovery, she complained of pain in her left hand, and after being discharged, she returned to the ER with complaints of hand pain. Three days after the first surgery, defendant performed a second surgery to remove the graft. Plaintiff continued to complain of pain, and six days later “a consulting physician documented that plaintiff had no ulnar pulse in her left arm.” Defendant did not order an arteriogram or a CT angiogram. Seventeen days after the second surgery, plaintiff had to have two fingers and part of a third finger removed, and she lost function of most of her left hand.

Plaintiff filed this HCLA suit alleging that defendant breached the standard of care by failing to perform certain imaging tests, and that “but for the Defendants’ acts and omissions, she would have full use of and sensation in her left hand[.]”

Defendant filed a motion for summary judgment, after which plaintiff’s expert Dr. Maltese was deposed. After the deposition, defendant “renewed his assertion that Plaintiff could not establish that any act or omission on his part caused Plaintiff to suffer any injury that she would not otherwise have suffered.” The trial court agreed, granting summary judgment, and the Court of Appeals affirmed.

The sole issue on appeal was “whether Dr. Maltese’s deposition testimony [was] sufficient to establish a genuine issue of material fact regarding proximate cause,” as the expert testimony was the only evidence offered by plaintiff in support of causation. During his deposition, Dr. Maltese explained that plaintiff was suffering from hand pain, not incision site pain, which require different treatments. Dr. Maltese stated that the hand pain and eventual loss of the ulnar pulse could have been caused by several possible conditions, but that he was not “a hundred percent sure” of the actual cause because imaging was not performed. Dr. Maltese opined that defendant “complied with the standard of care in his performance of the surgeries,” but that it was “imperative to image what was going on.” Dr. Maltese testified:

When the fingers are dying still after the surgery, you’ve got to image and find out why immediately because now it’s a real emergency. And that’s all I’m saying. Something happened and the hand didn’t get better and…no imaging studies were ever done that I could see. …[T]he best option would be to try to take care of it before it got to the point that it did, but I think there was something happened at the last surgery that compounded the problem because they lost the ulnar pulse at the last surgery. …And I can’t say what happened because we have no anatomical chart to say and that’s what confounds me.

In addition, Dr. Maltese stated that had imaging been done, “it’s going to show some problem because she lost her hand, it’s got to show something. It just may not have shown something that was correctable.” (Emphasis added.)

Based on this expert testimony, the Court of Appeals found that there was “nothing in Dr. Maltese’s testimony to indicate at what point…imaging would have revealed a condition that could have been corrected. More significantly, Dr. Maltese did not establish that such imaging would have revealed a reversible condition.” The Court noted that an HCLA verdict “cannot be based on mere speculation, conjecture, and guesswork,” and that causation must be “shown to a reasonable degree of medical certainty.” (internal citations omitted). The Court reasoned:

Dr. Maltese’s testimony is ambiguous and inconclusive with respect to whether additional testing would have revealed a condition that could have been treated, thereby preventing the injury. Dr. Maltese testified that an arteriogram or CT angiogram may or may not have revealed a reversible condition. He did not testify that the failure of [defendant] to perform [these images] resulted in a condition or injury that could have been corrected or that would not have otherwise occurred.

Summary judgment was thus affirmed.

This opinion illustrates the importance of a plaintiff’s expert witness in a health care liability case. What might seem like semantics in an expert’s testimony in some cases can be fatal in an HCLA claim.