May 25, 2013

162017_132140396847214_292624_nOn May 3, 2013, the Nebraska Supreme Court reversed a defense verdict in a medical malpractice case because the trial court allowed the medical malpractice defendant’s attorney to question one of the medical malpractice plaintiff’s treating physicians about his opinion of the defendant’s performance in treating the plaintiff for hip pain even though neither party had designated the treating physician as an expert. The Nebraska Supreme Court held that the trial court’s ruling denied the medical malpractice plaintiff any opportunity to challenge the presumptive validity and weight that a jury would have given to the plaintiff’s own treating physician testifying as an expert.

The Underlying Facts

In 2006, the plaintiff’s primary care physician began treating the plaintiff for back and hip pain. In June 2007, the plaintiff came under the medical care of an orthopedic surgeon. The orthopedic surgeon ordered x-rays that showed that the plaintiff had moderate arthritis in both hips. In July 2007, the plaintiff underwent a fluoroscopic-guided hip injection procedure to treat his pain. His pain was significantly relieved beginning three days after the injection and lasted until March or April 2008.

In May 2008, the plaintiff had another hip injection. A first-year resident performed the procedure under the defendant’s supervision. The resident sterilized the plaintiff’s skin before the injection but did not sterilize his skin during the procedure. The resident attempted the procedure using a smaller needle than was used during the 2006 injection procedure. When the resident failed to properly place the needle after two attempts, a much larger needle (larger than the needle used during the 2006 injection procedure) was used by the defendant during her two additional attempts (the last attempt was successful as to proper placement of the needle).

The plaintiff felt overly sore after the injection procedure but attributed it to the multiple injections. He followed the defendant’s post-procedure instructions but his pain progressed through the weekend. Around 2:30 a.m. on the following Tuesday, he was in terrible pain and was transported by ambulance to the hospital and treated for a staphylococcus aureus infection, which resulted in his admission to intensive care. He had to have a debridement procedure to remove infected tissue but the debridement failed to remove all of the infection.

The plaintiff had a second, more extensive debridement procedure in August but the infection had abscessed into his hip joint by then, destroying the joint. The plaintiff’s femur head had to removed and it was replaced with an artificial ball that delivers antibiotics to the joint and the femur (a “spacer”). However, the spacer was not structurally sound and rotated out of the socket easily. The plaintiff had significant pain, was unable to walk, and had to wait until the infection cleared up before he could have a total hip replacement. The total hip replacement surgery was performed in November 2008, after which the plaintiff required extensive rehabilitation until October 2009.

The Nebraska Medical Malpractice Lawsuit

The plaintiff filed his medical malpractice lawsuit in November 2009, alleging that the defendant was negligent in her treatment of the plaintiff and in her failure to obtain his informed consent. The defendant responded by alleging that the plaintiff had consented to the procedure knowing that there was a risk of infection and that she had performed the procedure within the standard of care.

Before the medical malpractice trial, the plaintiff filed a motion in limine to exclude his orthopedic surgeon’s opinions in a deposition and at trial regarding the standard of care and causation, arguing that the orthopedic surgeon’s opinions were irrelevant because he was the plaintiff’s physician and neither party had retained him as an expert. The court agreed because the defendant had not identified the orthopedic surgeon as an expert (the parties were previously required to timely identify their experts). The court ruled that the orthopedic surgeon’s opinions about the standard of care and medical causation were therefore irrelevant and inadmissible and ordered that the defendant’s attorney could not ask the orthopedic surgeon for “any opinions that don’t relate to the facts having to do with the treatment that he provided to [the plaintiff].”

Despite the court’s previous ruling, the trial judge permitted the defendant’s attorney to ask the orthopedic surgeon at trial in front of the jury, “Is there a standard size needle that one uses?” to which the orthopedic surgeon responded, “I would say two-and-a-half to four-and-a-half would cover most. Occasionally you might use a large needle.” The plaintiff’s attorney asked the trial judge to instruct the jury to disregard the orthopedic surgeon’s testimony about the needle size but the court stated, “I find it to be harmless error and I’m going to leave it the way it is.” The orthopedic surgeon was further permitted to testify that infection is a recognized complication of hip injections and that based on his experience, it is not uncommon with arthritic hips to place the needle more than once to get it in the correct site.

The jury returned a verdict in favor of the defendant and the plaintiff’s subsequent motion for a new trial was denied. The plaintiff’s appeal to the Nebraska intermediate appellate court resulted in the defense verdict being affirmed.

The Nebraska Supreme Court’s Decision

The Nebraska Supreme Court stated, “We conclude that the trial court erred in permitting [the orthopedic surgeon] to testify about standard of care issues and in refusing to give a curative instruction to the jury … Compared to the testimony of a hired expert, a juror was likely to give great weight to [the orthopedic surgeon’s] opinion because he was [the plaintiff’s] treating physician and testifying as an expert against his own patient. And the court’s rulings meant that [the plaintiff] had no meaningful opportunity to challenge the presumptive validity and weight of [the orthopedic surgeon’s] opinions.” Therefore, the Nebraska Supreme Court held, “We further conclude that the Court of Appeals erred in holding that this error was not prejudicial. Finding prejudicial error, we reverse the judgment of the Court of Appeals and remand this matter with directions that it vacate the district court’s judgment and remand this cause to the district court for a new trial.”


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