Missouri Supreme Court Rules Medical Malpractice Defendant’s Trial Testimony Not Substantially Different From His Deposition Testimony

The Supreme Court of Missouri (“Missouri Supreme Court”) upheld a defense verdict in a Missouri medical malpractice case in its opinion issued on September 11, 2018, holding that the defendant surgeon’s trial testimony was not substantially different than his opinion disclosed in discovery, and that the circuit court did not err in allowing the defendant and his four experts to give expert opinions about the standard of care and causation.

The Missouri medical malpractice wrongful death case was filed by the three children of a patient who underwent hernia repair surgery performed by the defendant surgeon. The patient later died from an infection that the plaintiffs alleged was due to the defendant surgeon negligently perforating the patient’s bowel during surgery, causing a leakage of bowel contents that led to her septic shock, and then failed to recognize or treat the bowel perforation after the patient was readmitted to the hospital where she was diagnosed with sepsis due to a serious infection in her abdominal cavity.

The defendant surgeon testified in his own defense, acting as both a fact witness and an expert witness. The defendant denied he was negligent and presented two alternative theories of causation unrelated to his own conduct. The first theory alleged the harm was most likely caused by an undetectable tear that gradually ruptured sometime after the patient was discharged from the hospital. He supported this theory with testimony from a single expert witness.

The defendant’s second theory alleged a complex preexisting condition caused the patient’s death. In support of this theory, the defendant called four expert witnesses: a general care surgeon, a cardiologist, a vascular surgeon, and a colorectal surgeon.

The Missouri medical malpractice jury returned its verdict in favor of the defendant surgeon, and the plaintiffs appealed, arguing that the circuit court erred because it permitted the defendant to testify regarding a new opinion for the first time at trial, and that the circuit court abused its discretion in allowing four experts, along with the defendant himself, to testify that the defendant did not breach the standard of care or cause the patient’s death. The plaintiffs argued that such testimony was needlessly cumulative because the scope of each expert’s testimony was overlapping.

Missouri Supreme Court Opinion

The Missouri Supreme Court stated that the defendant testified during his deposition that he believed that necrotic or dead bowel could only be the result of a vascular injury, and that the defendant’s trial testimony was neither new nor contradictory to the opinion given at his deposition. To the extent the defendant’s trial testimony was different, the Missouri Supreme Court stated that he was simply stating what specifically caused ischemia or a lack of blood supply to the patient’s bowel rather than what generally restricts blood supply to the bowel (during his deposition, the defendant testified that he did not know what specifically caused the lack of blood supply or ischemia to the patient’s bowel).

With regard to the cumulativeness of the expert testimony, the Missouri Supreme Court stated that it agreed with the defendant that in a wrongful death action arising from medical negligence, the very root of the matter in controversy is whether the defendant breached the standard of care and causation, and therefore this evidence was not cumulative under Missouri law. The Missouri Supreme Court held: “A careful review of the trial transcripts indicates [that the defendant] and his experts testified about the very root of the matter in controversy; the evidence therefore, was not cumulative. While the expert testimony overlapped at times, the experts testified about their own specialties and offered their own parts, as the circuit court noted. When the expert testimony did overlap, the overlapping testimony went to the issue of the standard of care and causation––the “very root” of a wrongful death action arising from medical negligence.”

Source Shallow v. Follwell, No. SC96901.

If you or a loved one may have been harmed as a result of medical malpractice in Missouri or in another U.S. state, you should promptly find a Missouri medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Friday, September 28th, 2018 at 5:23 am. Both comments and pings are currently closed.

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