This malpractice case breaks no new ground but touches on a few useful practice pointers.

A lady was going to a rehab center for treatment of bone fracture. While there she complained of chest pains and the center’s doctor, an internist, was called to see her. He ordered nitroglycerin; she felt better but died several hours later of heart failure. Her beneficiaries sued. The doctor made several dispositive motions on disclosure and expert-witness issues.

He moved to disqualify the plaintiffs’ expert. The expert was an internist but also a cardiologist, which specialty he had practiced almost exclusively during the previous year. The trial court granted the motion and the Court of Appeals affirms. The opinion treats the issue respectfully but between the lines says  “under the statute (12-2604) this isn’t a tough call.” Plaintiffs made the “more expert” argument – that a cardiologist is an even better expert in a heart case than an internist. This is a misunderstanding – convenient, we’re pretty sure, rather than actual – of the meaning of the statute and of the basis of malpractice liability under current law.

Plaintiffs argued that a position contrary to theirs was “absurd.” The Court of Appeals, too, mentions it in quotation marks, which we hope everyone recognizes as admonishment and advice.

In response to their expert’s disqualification the plaintiffs asked for time to get a new one. The trial court denied it but the Court of Appeals decides that this was an abuse of discretion. Turns out that the defendant had sandbagged, waiting until after the disclosure deadline to raise an issue about the expert. The trial court had presumably put in the balance the fact that after the issue was raised the plaintiffs did nothing about it for months, until they lost the disqualification motion. The opinion does not suggest that that makes any difference once the disclosure deadline passes. We will be interested to see whether the rule that diligence can stop when disclosure does is applied to defendants as well as plaintiffs.

The trial court awarded some attorney’s fees to the defendant because of the plaintiffs’ misleading disclosure about one of the witnesses, the medical examiner who performed the autopsy. The disclosure, which apparently wasn’t cleared with the witness beforehand, said essentially that he would support plaintiffs’ theory of the case, in the course of which it twisted his opinions around and put some of them backwards. The Court of Appeals affirms the sanction. That counsel knew the disclosure to be false and misleading couldn’t be established but he should have known and that was enough.

The court addresses, on the defendant’s cross-appeal (since it would be dispositive if valid),  a summary-judgment argument that the trial court did not agree with. He argued that even if the plaintiffs’ expert were qualified the opinion was speculative. The opinion was that the defendant should have told the decedent’s son that she should go to an emergency room, in which event son would have told mom and mom would have obeyed. In the past mom had variously refused and agreed to medical treatment. How a doctor could read the mind of a patient he never met and how, if that is a medical opinion at all, it is one for a cardiologist are beyond us. But the opinion affirms, saying that an expert can rely on “his or her own years of first–hand experience in a medical practice to formulate opinions as to the probable treatment a patient would receive and the likely outcome.” 

There were a couple of other issues but we skip those as either inconsequential or fact-specific. Remanded to give the plaintiffs another chance to get an expert.

(link to opinion)