The parents of Z.R. brought a Missouri medical malpractice action asserting that the defendants negligently failed to evaluate and treat her bilateral hip dysplasia when she was an infant. Hip dysplasia is most often diagnosed while the child is a newborn.
Pavlik harnesses are commonly prescribed to treat infants diagnosed early with hip dysplasia. A Pavlik harness is a soft brace worn by an infant for two to three months, which helps the joint form normally so that the child will not be in any elevated risk for hip surgery. An infant can begin wearing a Pavlik harness at one day old. Infants who wear Pavlik harnesses generally do not require surgery to treat their hip dysplasia.
Z.R. was examined by Dr. Dattel and physician’s assistants at Kansas City Pediatrics multiple times throughout 2016 and 2017. There were no notations in Z.R.’s Kansas City Pediatrics records about hip clicks, and all subsequent examinations of Z.R.’s hips indicated that they were stable and had normal, active motion. The defendants’ records did not contain any references to hip dysplasia or otherwise indicate a concern or suspicion that Z.R. had a hip abnormality. The defendants’ records did not reference “any consideration of having referred [Z.R.] for pediatric orthopedist evaluation” or “any consideration of ordering an ultrasound” for Z.R.
In June 2018, Z.R. was seen by a doctor at Children’s Mercy Hospital, who suspected Z.R. had hip dysplasia. An X-ray showed that both of Z.R.’s hips were dislocated, confirming a diagnosis of bilateral hip dysplasia. Z.R. underwent two surgeries in the summer of 2018, one on each hip, to put her hips back in their sockets. Z.R. underwent a third surgery in August 2019 to remove the hardware in her hips.
The defense expert testified at his deposition that a child can be born with one or both hips dislocated, and that he could not rule out that Z.R. had been born with dislocated hips. He further testified that an ultrasound could have been safely performed on Z.R. starting “at the first day of [her] life” to diagnose her hip dysplasia, an orthopedic referral “could have been done” before Z.R. was four months old to diagnose her hip dysplasia, and if Z.R. had been diagnosed “in an early period, and if treatment had been administered in the form of [a] Pavlik Harness, much more likely than not [Z.R.] could have avoided surgery on one or both hips.”
At trial, the defense expert testified that if Z.R.’s hips were dislocated at birth, the use of a Pavlik harness would not have been an effective treatment. Z.R. objected to this testimony on the grounds that it was a new opinion of the defense expert that had not been previously expressed or otherwise disclosed to Z.R. The objection was overruled.
After two days of deliberation, nine of the twelve Missouri medical malpractice jurors returned a verdict in favor of the defendants. Z.R. filed a motion for new trial asserting, among other claims, that the defense expert’s trial testimony contradicted material opinions he expressed in his deposition that directly addressed core issues in the case.
The trial court granted Z.R.’s motion for new trial, concluding that the defense expert’s trial testimony “directly contradicted [his opinion] that was disclosed in discovery.” The trial court found that the defense expert “testified in his discovery deposition that ultrasound could have identified [Z.R.’s] hip dysplasia in the first few months of her life and that, if hip dysplasia would have been so identified, the simple use of a Pavlik harness would likely have done away with the dysplasia and avoided the need for surgery.”
The defendants appealed, arguing that the stated basis for the trial court’s granting of the plaintiff’s new trial motion was erroneous.
In its Opinion filed on October 31, 2023, the Missouri Court of Appeals Western District (“Missouri Appellate Court”) stated, “the trial court determined that Defense Expert testified to a new opinion at trial that contradicted his deposition testimony, resulting in prejudice to Z.R. warranting a new trial. We discern no abuse of discretion in that determination,” explaining “Defense Expert plainly testified to a new opinion at trial which was substantially different than his deposition testimony when he opined that hips that are dislocated at birth and remain dislocated are only consistent with a teratologic dislocation, and a Pavlik harness would not have treated Z.R.’s hips if they were teratologic. Defendants did not disclose this change in opinion to Z.R. prior to trial, and thus this was “surprise” testimony entitling Z.R. to relief … The trial court was within its discretion to grant Z.R. relief by ordering a new trial.”
Source Z.R. v. Kansas City Pediatrics, LLC, WD85751.
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