The United States Court of Appeals for the Ninth Circuit (“Federal Appellate Court”), in its unreported Memorandum opinion dated June 9, 2020, affirmed a federal medical malpractice verdict in favor of the United States involving alleged negligent medical care provided by the VA. The federal court affirmed the trial court’s determination that the plaintiff’s sole expert on the applicable standard of care was not credible because his testimony was of an advocate, rather than an expert.
The Underlying Facts
The plaintiff underwent ankle surgery after which his leg became infected due to complications related to his diabetes. The plaintiff ultimately required amputation of his leg below the knee as a result.
The plaintiff filed a federal medical malpractice case under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671–80, alleging medical malpractice by his primary care physician at the Department of Veterans Affairs (“VA”). The plaintiff alleged that his VA primary care physician was required (a) to tell him not to undergo surgery because his diabetic condition was uncontrolled (creating an unreasonable risk of infection), (b) tell his surgeon the same message, or (c) de-authorize the VA’s medical care referral to the surgeon, who was not affiliated with the VA and therefore was not part of the FTCA lawsuit.
During the bench trial, the district court found that the plaintiff’s only expert witness on the applicable standard of care was not credible because his testimony was of an advocate, rather than an expert. Therefore, the district court held that the primary care physician’s duty of care did not require him to undertake any of those three actions.
Under the FTCA, a federal court must apply the law that state courts would apply in an analogous tort action (in this case, Washington tort law applied). The Federal Appellate Court held: “Without the testimony of his expert witness, which the district court plausibly did not find credible, he [the plaintiff] could not establish that Washington’s standard of care required [the VA primary care physician] to perform any of the three acts (a), (b), or (c) … The record plausibly shows that [the plaintiff’s expert] testified to a standard of care that he and his hospital do not practice, that he does not teach to his residents during training, and that no text or treatise proffered by [the plaintiff’s expert] supported. Thus, the district court’s finding that [the plaintiff’s expert] was acting as an advocate rather than an expert was not “‘illogical or implausible,’ or without ‘support in inferences that may be drawn from the facts in the record.’”
If you or a loved one suffered harm as a result of medical malpractice involving a VA medical facility, you should promptly find a federal medical malpractice lawyer (Federal Tort Claims Act lawyer) who may investigate your federal medical malpractice claim for you and represent you or your loved one in a Federal Tort Claims Act medical malpractice case, if appropriate.
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