Proving Standard of Care

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Proving Standard of Care

Postby Administrator » Mon Sep 29, 2014 11:43 pm

Because the trial court acted within its discretion in denying Dr. Townsend's Rule 50 motion, we must next address his contention that Ms. Donaldson was not entitled to the testimony of the Hospital's expert to establish her prima facie case. We disagree. As Wigmore has stated, “[T]he sufficiency of evidence which will defeat [a motion for judgment as a matter of law] may be found in the opponent's own evidence....” 9 Wigmore on Evidence § 2495 (1981) (emphasis in original). Indeed, we have previously held that an opponent's experts can be used to defeat summary judgment. In Abbey v. Jackson, 483 A.2d 330, 331 (D.C.1984), a medical malpractice action, the trial court had granted summary judgment for the defendant on the grounds that the plaintiff had named no experts of her own, but had merely cross-designated the defendant's experts. We reversed the grant of summary judgment, holding that this cross-designation was sufficient to send the matter to trial. It would be unreasonable to permit a plaintiff to rely on an opposing party's expert witnesses to defeat summary judgement and then prohibit the plaintiff from using those experts at trial.

*11 We have, on other occasions, affirmed a grant of summary judgment where a plaintiff failed to designate its own expert, but those cases involved fact patterns that led the trial court to conclude that there was no basis to believe that the defendant's experts would in fact be helpful to the plaintiff at trial. In Berkow v. Hayes, 841 A.2d 776, 780 (D.C.2004), for example, we upheld a grant of summary judgment despite the appellant's claim that he could have provided adequate standard of care testimony through the defendants' experts. We found this argument unpersuasive because he had “never notified the defendants that he intended to do so ... and, in any event, there is no record basis ... for believing that [he] could have used defense witnesses to establish the standard of care and defendants' departure from it.” Id. Similarly, in Eibl v. Kogan, 494 A.2d 640 (D.C.1985) (per curiam), we upheld a grant of summary judgment, concluding that “this is not a case in which a plaintiff might reasonably be expected to elicit, on cross-examination, testimony from which a jury might glean support for his contention.” Id. at 643 n. 2.

The situation here is distinguishable from those in Berkow and Eibl. There is no question that Ms. Donaldson can elicit helpful expert testimony from Dr. Bechamp. She has already done so. Thus, the fact that the testimony came in through an expert for the Hospital is not a bar to its use by Ms. Donaldson. Moreover, as we noted above, Dr. Townsend recognized before trial that he and the Hospital had conflicting theories of the case. This, coupled with Ms. Donaldson's cross-designation of Dr. Bechamp and her attempt to subpoena him during her case in chief should have put him on notice that such testimony could be forthcoming. Thus, we hold that the testimony of Dr. Bechamp could be utilized by Ms. Donaldson in establishing her prima facie case. FN23

Townsend v. Donaldson
--- A.2d ----, 2007 WL 1213217
D.C.,2007.
April 26, 2007

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While expert testimony may not be required in every medical malpractice case, in a case such as this, where the surgical procedure complained of is “beyond the ken of the average layman,” Waggaman v. Forstmann, 217 A.2d 310, 311 (D.C.1966), it is incumbent upon the moving party, in order to present a prima facie case of negligence, to establish, by expert testimony, the standard of care applicable to performance of the procedure and causation.FN2 See *643 Sponaugle v. Pre-Term, Inc., 411 A.2d 366 (D.C.1980). As we have noted in a more recent case,


FN2. In the proceedings in the trial court, appellant suggested that he might establish his prima facie case by cross-examination of appellees' experts. During the period between the disposition of the case at the trial level and argument before this court, we have concluded, in Abbey v. Jackson, 483 A.2d 330 (D.C.1984), that “[a]llowing plaintiffs in the appropriate case to prove a malpractice claim through the expert testimony of defendant physician or defense witnesses is ... consistent with the purposes of the expert testimony requirement....” Id. at 334 (emphasis added). While Abbey was clearly such an appropriate case, it is readily distinguishable from the present case. In Abbey the “cogent question” was one of credibility, id., i.e. whether or not appellant, the plaintiff below, had been informed of alternatives and risks to an abortion procedure. Thus, the situation there was no different from any case in which adverse parties differ as to facts giving rise to a suit. As the court noted, such questions of credibility are traditionally within the jury's province. As such, the need for expert testimony is extremely limited. Id.

Here, however, the question at issue is not one traditionally within the province of the jury, but is, rather, one which goes to the performance of a medical procedure, the applicable standard of care and whether there was any deviation from that standard. As the trial court concluded, and the record confirms, this is not a case in which a plaintiff might reasonably be expected to elicit, on cross-examination, testimony from which a jury might glean support for his contention. As such it is not the “appropriate case” for cross-examination of defense experts envisioned by Abbey v. Jackson, supra.


“[I]f a case involves the merits and performance of scientific treatment, complex medical procedures, or the exercise of professional skill and judgment, a jury will not be qualified to determine whether there was unskilled or negligent treatment without the aid of expert testimony.” Washington Hospital Center v. Martin, 454 A.2d 306, 308 (D.C.1982) (quoting Harris v. Cafritz Memorial Hospital, 364 A.2d 135, 137 (D.C.1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977)).

In Martin, the issues were ones which the jury could resolve through application of its common knowledge. There suit was brought by a patient who alleged that she fell out of bed and was injured as a result of the fall because the hospital was negligent in failing to protect her from falling. The hospital argued that it had not been negligent and that the patient had been placed in restraints to prevent just such an accident. Thus the issues in that case were (1) whether the patient was under restraints prior to the fall and (2) if not, whether the hospital was negligent in leaving the patient unattended.

We concluded there that expert testimony was neither necessary nor helpful, as the case was an “ ‘ordinary’ negligence case, in which jurors may apply their own experience in deciding how any reasonably prudent person would have acted under the circumstances.” Id. at 309 (citations omitted).

Eibl v. Kogan
494 A.2d 640
D.C.,1985.
April 05, 1985

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Park v. Northwest Hosp.,
Not Reported in P.3d, 132 Wash.App. 1045, 2006 WL 1134962, Wash.App. Div. 1, May 01, 2006 (NO. 54943-0-I, 54944-8-I)

A new trial is available under CR 59(a)(Cool if there was an “[e]rror in law occurring at the trial and objected to at the time by the party making the application.” The error of law complained of must be prejudicial. Dickerson v. Chadwell, Inc., 62 Wash.App. 426, 429, 814 P.2d 687 (1991) (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 533, 554 P.2d 1041 (1976)). No element of discretion is involved when the new trial is granted on the ground of an error of law.FN8 Jazbec, 55 Wash.2d at 375, 347 P.2d 1054.


FN8. It is important to clarify that the trial court's evidentiary rulings are reviewed under an abuse of discretion standard and will be upheld if they did not constitute an abuse of discretion. A trial court cannot grant a new trial under CR 59(a)(Cool because, in retrospect, it would have exercised its discretion differently. Rather, a new trial can be granted under CR 59(a)(Cool because of an evidentiary ruling only if the trial court abused its discretion in making the evidentiary ruling.


The trial court ruled in its order granting a new trial that it

erred in permitting defendants to elicit opinion testimony from plaintiff's vascular experts on whether Dr. Howisey violated the standard of care. Plaintiffs had explicitly withdrawn their vascular experts' testimony on this issue and had brought an appropriate motion in limine to prohibit defendants' examination. The court's erroneous ruling denying the plaintiff's motion in limine had the effect of giving defendants four experts on the issue of Dr. Howisey's negligence, which was unfair. The error justifies a new trial under CR 59(a)(Cool.

Park's vascular experts were Drs. Joseph Rapp and Dudley Moorhead. Park moved prior to trial to preclude the defense from questioning Rapp or Moorhead about the standard of care applicable to doctors who had settled (Howisey and McDonald). Park claimed that her experts would not testify about standard of care issues. The trial court reserved ruling on the issue.

When a party loses a motion in limine, the party is deemed to have a standing objection unless the trial court indicates that further objections are required at trial. State v. Powell, 126 Wash.2d 244, 256, 893 P.2d 615 (1995). When the trial court makes a tentative ruling before trial, error is not preserved for appeal unless the party objects to admission of the evidence when it is offered, allowing the court an opportunity to reconsider its prior ruling. Eagle Group, Inc. v. Pullen, 114 Wash.App. 409, 416-17, 58 P.3d 292 (2002). Here, there was no trial court ruling, as the trial court expressly reserved ruling on the motion in limine. Thus, to preserve the error, Park was required to object.


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In arguing the trial court erred in granting defendants' motion in limine, plaintiff Gallina relies on language from this court's decision in Rush v. Hamdy, 255 Ill.App.3d 352, 194 Ill.Dec. 477, 627 N.E.2d 1119 (1993). In Rush, the plaintiffs argued the trial court erred in not allowing them to ask the defendants' expert witness whether he would have personally used a “Savary” dilator in treating the plaintiff instead of an achalasia balloon. Rush, 255 Ill.App.3d at 362, 194 Ill.Dec. 477, 627 N.E.2d at 1125. Defendants' expert testified the use of an achalasia balloon was within the acceptable standard of care. Rush, 255 Ill.App.3d at 362, 194 Ill.Dec. 477, 627 N.E.2d at 1125-26. However, at his deposition, defendants' expert testified if plaintiff had been his patient, he would have treated her with a “Savary” dilator. Rush, 255 Ill.App.3d at 362, 194 Ill.Dec. 477, 627 N.E.2d at 1126. The plaintiffs in Rush made the following argument:

“[T]here is a difference in the persuasive value of an expert witness who testifies a certain procedure is within the standard of care and is the procedure which the expert himself would have used under the same circumstances and an expert who testifies a certain procedure is within the standard of care, but that he would not have utilized that procedure under the same circumstances.” Rush, 255 Ill.App.3d at 362, 194 Ill.Dec. 477, 627 N.E.2d at 1126.

This court agreed but found the trial court did not abuse its discretion *521 in not allowing this line of inquiry because the trial court had allowed the plaintiffs to elicit testimony from the defendants' expert “ that he had never used an achalasia balloon to dilate a Schatzki's ring, and in all of his years of practice [the defendant doctor's] treatment of [the plaintiff] was the only case he knew of in which an achalasia balloon had been used to dilate a Schatzki's ring.” (Emphasis omitted.) Rush, 255 Ill.App.3d at 363, 194 Ill.Dec. 477, 627 N.E.2d at 1126. According to this court, “[t]his testimony sufficiently tested the credibility of [the defendants' expert's] opinion that the use of an achalasia dilator was within the acceptable standard of care to the jury.” Rush, 255 Ill.App.3d at 363, 194 Ill.Dec. 477, 627 N.E.2d at 1126.

**331 ***280 While we agree with defendants a plaintiff cannot establish a prima facie case of medical negligence based solely on the testimony of another physician that he or she would have done things differently, we disagree with defendants' argument that a expert medical witness's personal preferences are always irrelevant. In this case, the excluded portion of Dr. Whalen's testimony is relevant because it affects the persuasive value of Dr. Whalen's opinions as discussed below.

Gallina v. Watson
354 Ill.App.3d 515, 821 N.E.2d 326
Ill.App. 4 Dist.,2004.
December 20, 2004
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ii. Negligence

Chase next moves for summary judgment on Plaintiffs' common law claim that Chase was negligent in issuing a credit card in Mary Borg's name and negligently monitored the account for fraudulent activity. Under Tennessee law, the plaintiff in a negligence action must prove each of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct of the defendant that fell below the applicable standard of care, amounting to a breach of the duty owed to the plaintiff; (3) an injury or loss sustained by the plaintiff; (4) causation in fact; and (5) proximate causation. Burroughs v. Magee, 118 S.W.3d 323, 327-28 (Tenn.2003). Chase argues that Plaintiffs have failed to create an issue of material fact as to whether Chase's conduct fell below the required standard of care in the credit card industry.

Plaintiffs' complaint alleges that Chase was negligent in four ways: (1) failing to alert Mary Borg that it was sending an unsolicited credit card application; (2) failing to determine Mary Borg's age, health, or living arrangements, whether she regularly receives her correspondence, is capable of handling her own financial affairs, desires a credit card, or “is ambulatory”; (3) failing to monitor the “account of its patrons to determine if any unusual patterns of conduct exist”; and (4) accepting checks that do not bear the proper signature of the maker. (Compl.¶ 15.) Plaintiffs have produced no evidence that by failing to perform these acts, Chase's conduct fell below the required standard of care in the credit card industry. In their response to Chase's motion for summary judgment, however, Plaintiffs attach the affidavit of Don Coker, an expert in the banking and credit card industries, who states that in his opinion, “the conduct of Chase in the solicitation of the Borg account, the verification of the signature, the monitoring of the account or lack thereof falls well below the standard of commercial reasonableness in the credit card industry in the United States.” (unnumbered attachment to Pls.' Resp. Chase's Mot. Summ. J., Aff. Don Coker, Dec. 9, 2005, 3.)

*7 Plaintiffs acknowledge that the disclosure of this expert is untimely, but assert that they were only recently able to afford to retain an expert, and they “pray the indulgence of the Court to be permitted to produce this expert proof.” Chase, on the other hand, vigorously objects in its reply brief to Plaintiffs' untimely expert disclosure, as the deadline for such disclosure passed on June 15, 2005, and urges the Court to “reject this attempt to blindside Chase at this late stage in the litigation.” (Chase Reply 4.)

The Court will not permit Plaintiffs to rely on expert testimony only disclosed six months after the expert disclosure deadline passed in an effort to defeat summary judgment. See Fed.R.Civ.P. 37(c)(“A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) ... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.”) Chase has not had an opportunity to depose this expert, and therefore, would be prejudiced by the late disclosure of his statements submitted in opposition to its motion for summary judgment. Accordingly, the Court will not consider the opinion of Mr. Coker as to whether Chase's conduct fell below industry standards. As Plaintiffs have not come forward with any other evidence to create a triable issue of material fact on whether Chase breached its duty of care to Plaintiffs, the Court GRANTS Chase's motion for summary judgment on this cause of action.

Borg v. J.P. Morgan Chase & Co.
Slip Copy, 2006 WL 2052856
W.D.Tenn.,2006.
July 21, 2006

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Wilson v. Prudential Financial
475 F.Supp.2d 48
D.D.C.,2007.
March 01, 2007
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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