Appeals Court Denies Hospital’s Objection to Expert Witness Report
News: In March 2017, a man sought emergency treatment after a toolbox fell and crushed his hand while he was working as an auto mechanic. The box slashed open his left thumb, causing a 6 cm cut and a bone fracture in the tip of his thumb that extended to the next bone. An emergency physician (EP) treated the patient’s injury and instructed him to follow up with an orthopedic specialist in two days. The specialist recommended surgery, which was scheduled for March 16. However, the surgeon canceled the operation and performed a drainage procedure when the surgeon discovered an infection in the patient’s hand.
The patient filed a malpractice lawsuit, claiming a breach in standard of care, noting the delay in treatment led to permanent injury to his thumb. The plaintiff’s expert witness report claimed the hospital failed to staff a hand fellowship-trained surgeon for immediate consultation, and failed to immediately recommend the patient visit the specialist. The defendants objected, arguing the expert witness was not trained as an EP. The trial court did not allow the expert witness to testify, but an appeals court overturned the objections to the report, ruling the expert witness was qualified to present opinions on standard of care in the case.
Background: On March 11, 2017, a man presented to an emergency department with a laceration and bone fracture to his thumb after a toolbox fell on his hand. An EP treated the patient’s injuries and referred him to an orthopedic specialist, arranging an appointment for March 13. The specialist recommended surgery, scheduled for March 16.
During surgery, the specialist discovered the patient’s hand was infected. The specialist stopped the surgery and performed a drainage procedure. The patient later underwent two additional drainage procedures. As a result, the patient experienced permanent damage to his thumb, and a 9% impairment rating.
The patient filed a malpractice suit, alleging the EP breached the standard of care by not immediately referring the patient to a hand specialist and failing to recommend emergency surgery within 24 hours of the injury. The patient’s expert witness — a board-certified orthopedic surgeon — submitted a report backing these claims, stating the hospital did not have a hand fellowship-trained surgeon on call for immediate consultation.
The defendant physician and hospital objected to the report, stating the expert witness did not provide evidence of emergency medicine training, and orthopedic experience does not overlap with emergency medicine. The trial court allowed the plaintiff time to remedy any defects in the expert witness report.
The defendants appealed, arguing the trial court abused its discretion by allowing the plaintiff to remedy the expert witness report. The appellate court affirmed the trial court’s decision, noting state law does not require dismissal of a deficient report that can be fixed. The justices also noted previous courts have ruled doctors who are board certified in their field are qualified to write expert reports.
What this means to you: This case shows the importance of expert testimony in reporting the standard of care. However, the legal requirements for expert witnesses are fairly minimal. According to Federal Rule of Evidence 702, expert witnesses must possess “knowledge, skill, experience, training, or education” that will “help the trier of fact to understand the evidence or to determine a fact in issue.” The court enforced this broad standard when it acknowledged other courts’ rulings that doctors who are board certified in their field are qualified to write expert reports.
The expert witness process is the result of decades of evolution and refinement, with numerous different professionals working together. The expert witness testimony procedures in the United States demand honest, unbiased opinions about evidence, responsibility, and integrity from all professionals involved in a court case. The primary roles of expert witnesses are to provide testimony about evidence in the case and to clarify matters such as the standard of care.
The fact an expert is to remain (or should remain) impartial lends further credibility to their reports. The expert’s role is to simply provide the court objective, unbiased information. The broad strokes set forth by the rules of expert testimony are largely because of the value brought by experts informing candidly and neutrally.
During testimony, many expert witnesses present a case or opinions in a way that can remove confusion about technical aspects and concepts the average judge or jury panel member will not otherwise understand. Depending on the subject matter, the case may proceed with specific experts in numerous fields to remove confusion, clarify details, and help the court understand the information.
As seen here, plaintiff’s expert witness merely informed the court of the standard of care within the industry. The standard for a hospital, as reported by the witness, is for a fellowship-trained hand surgeon to be available for immediate consultation to the treating physician, and for the doctor to immediately consult or recommend a specialist. The EP did not follow these practices. The plaintiff was permitted to present his expert report because it included information on the standard of care in the industry. Because of this report, the court determined the defendants’ liability due to a failure to follow the industry standard of care.
Expert witness reports are crucial for helping determine liability in a nonbiased and tactful manner. As long as experts follow the criteria set forth in the evidence code, their reports should not be suppressed for minor, correctable flaws. If written truthfully and with integrity, expert reports are invaluable, especially when setting the standard of care in a specific industry. Without this standard set forth, it would not be possible to determine liability in many cases.
Additionally, this case shows the importance of knowing and following industry standards. This litigation could have been avoided if the hospital took adequate measures to ensure the health and well-being of its patients. Often, in the hectic environment of an emergency department, practitioners can overlook providing recommendations for follow-up care. Most healthcare organizations recognize this and create standards of care for follow-up treatment in their discharge instructions. It is important to keep the medical records from the start of care with the current record. More importantly, this entire record should be reviewed by each provider.
Finally, if hospitals and medical professionals inform themselves adequately before any conflict, they can significantly reduce the probability of medical malpractice. Knowing and following industry standards is beneficial for all parties. Following standards of care allows for the lowest risk for the patient and the healthcare professionals.
REFERENCE
- Decided Jan. 13, 2022, in the Fourteenth District Court of Appeals of Texas, Case Number 14-20-00004-CV.
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