November 26, 2013

162017_132140396847214_292624_nThe trial judge in a federal Mississippi medical malpractice case determined that the plaintiff’s required expert affidavit was deficient and that the medical malpractice defendant was entitled to judgment in his favor as a matter of law. In a November 21, 2013 written opinion issued by the United States Court of Appeals for the Fifth Circuit, the appellate court affirmed the federal district court’s decision, “Because [the plaintiff’s medical expert’s] report does not establish causation as a medical probability or point to a breach of the standard of care with the requisite specificity.”

The Underlying Facts

A man who was experiencing symptoms of reflux sought treatment from his primary care physicains, who referred him to the Jackson VA Medical Center (“JVAMC”) for an esophagogastroduodenoscopy (“EGD”) to examine his upper gastrointestinal tract. The man had the EGD performed on December 10, 2003 that discovered a mass in his stomach (“fragments of adenomatous dysplatic mucosa, consistent with papillary adenoma” and “[c]omplete intestinal metaplasia”). The doctor who did the EGD scheduled the man to have an “Endoscreen” based on a diagnosis of “stomach polyp,” but when the man arrived for the test at the JVAMC on March 12, 2004, he allegedly was told that there was no EGD scheduled for him that day and that since he had an EGD within the past year, there was no necessity to repeat the test.

During the summer of 2008, the man experienced weight loss and difficulty eating for which he was seen at his primary care physicians. He was admitted to the JVAMC on July 8, 2008. On July 9, 2008, an EGD revealed a cancerous stomach mass. The man had surgery on July 25, 2008 but died on July 29, 2008.

The Federal Medical Malpractice Claim

A medical malpractice claim was subsequently filed under the Federal Tort Claims Act (“FTCA)”), alleging that his medical providers failed to provide appropriate follow-up care after discovering a mass in the man’s stomach in 2003.

Under the FTCA, the United States is liable for personal injury or death caused by a government employee’s negligence under circumstances in which a private person would be liable under the law of the state in which the negligent act or omission occurred. State law is controlling in FTCA medical malpractice cases. Therefore, Mississippi medical malpractice law applied to the claim.

Under Mississippi law, a medical malpractice claim requires proof of (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant; expert testimony is required to establish each of these elements (“Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.”)

Furthermore, Mississippi medical malpractice law requires that the plaintiff must present evidence that proper treatment would lead to a greater than fifty percent (50%) chance of a better result than was in fact obtained — the expert opinion of a doctor as to causation must be expressed in terms of medical probabilities as opposed to possibilities, and a mere better result absent malpractice would not meet the causation requirement.

In the present case, the district court determined that the plaintiff’s medical expert’s affidavit included no specific analysis of the results of the man’s December 10, 2003 EGD and it also failed to state the point at which surgical intervention would have yielded a better outcome, therefore the plaintiff had failed to establish causation. Furthermore, the district court judge found that the plaintiff’s expert’s affidavit failed to establish with any specificity the standard of care applicable to the medical malpractice defendant or the particulars of the alleged breach of duty (the affidavit did not identify a particular alleged breach of duty, such as not notifying the man of the EGD results, turning him away at his follow-up appointment, or not scheduling future follow-up appointments), and it did not specify the individual hospital staff member at fault for the alleged breach.

Source: In The Matter of the Estate of Ira J. Sanders, Deceased, Ruth Sanders, Administrator, Plaintiff – Appellant v. United States of America, Defendant – Appellee, No. 12-60901.

If you or a family member may have been injured as a result of medical malpractice in Mississippi or in another U.S. state, you should promptly seek the legal advice of a Mississippi medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.

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