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Expert Needed for Failure to Communicate Blood Testing Need


A man presented to the hospital complaining of shortness of breath and leg swelling. The attending physician placed the man on blood thinners, including heparin and warfarin, because the attending physician suspected a pulmonary embolism. The attending physician ordered the man to undergo daily blood clotting tests.

 

In preparation for the man’s discharge from the hospital, another doctor wrote the man a prescription for warfarin and wrote discharge instructions that specified that the man undergo regular blood testing. Upon discharge, the man was instructed to continue taking the blood thinners. The man was not advised to undergo regular blood testing. The discharge instructions were not given to the man.

 

Approximately three weeks later, the man suffered a subarachnoid hemorrhage, bleeding in the space between the brain and the dura mater (the tough outer membrane of the central nervous system), and a partial seizure. The man was admitted to a different hospital. Testing revealed that the man had elevated warfarin levels. The man was discharged with instructions not to take any additional warfarin.

 

The man sued the attending physician and practice group for medical malpractice. The complaint alleged that the attending physician deviated from the standard of care by failing to advise the man of the need for blood testing after the man was discharged to monitor his warfarin levels.

 

In support of the complaint, the man filed an expert report from a doctor. The half-page report indicated that the doctor had reviewed the man’s medical records. The doctor opined that the failure of the discharge instructions the man was actually given to mention warfarin or the careful monitoring required constituted a gross deviation from the standard of care which led to the subsequent bleeding and neurological damage sustained by the man.

 

During discovery, the doctor who wrote the prescription and discharge instructions that were not given to the man was deposed by the attending physician and practice group as a fact witness. During the deposition, the doctor’s counsel expressly advised that the doctor would not answer any questions calling for expert testimony. The doctor did not testify that the attending physician or practice group deviated from the standard of care.

 

The attending physician and practice group filed a motion to dismiss. The motion argued that the man’s expert report was insufficient to establish that the attending physician and practice group had breached any duty of care owed to the man. The man contended that his expert’s report or the other doctor’s deposition testimony was sufficient to survive summary judgment and the attending physician and his practice group’s negligence was obvious to a layperson such that no expert testimony was necessary. The Court of Common Pleas of Westmoreland County, Civil Division, granted the motion to dismiss.

 

The Superior Court of Pennsylvania affirmed. The court held that expert testimony was necessary in this case to prove negligence, the man’s expert’s report did not offer sufficient opinions to survive summary judgment, and the other doctor’s deposition testimony did not offer sufficient expert opinion to survive summary judgment.

 

Expert testimony was necessary in this case to prove negligence. Whether the man should have undergone outpatient blood testing was not something a layperson knows as well as any expert. One doctor’s failure to inform the man of another doctor’s order is only negligence if it is established that the order was required to satisfy the standard of care. Without testimony that ordering outpatient blood testing was required to satisfy the standard of care, an ordinary layperson would have no idea whether the doctor who ordered the testing or the doctor who failed to inform the man of the other doctor’s order acted reasonably under the circumstances. The court agreed with the trial court that the man could not make out a prima facie case without expert testimony.

 

The man’s expert’s report did not offer sufficient opinions to survive summary judgment. The man’s expert’s report made a general statement, but failed to apply the standard of care to the attending physician and practice group. The report did not answer the question of whether an attending physician has a duty to provide written instructions to a patient upon discharge. The report did not provide an explanation of the existing standard of care and how the attending physician and practice group were responsible for ensuring that the standard of care was fulfilled. The expert did not state his opinion with a reasonable degree of medical certainty.

 

The other doctor’s deposition testimony did not offer sufficient expert opinions to survive summary judgment. The other doctor did not provide a report for the man’s use in this litigation. He was deposed as a fact witness only. The other doctor did not testify that the attending physician or his practice group deviated from the standard of care. The court concluded that the other doctor’s deposition testimony did not provide expert testimony to establish the relevant standard of care or the attending physician and practice group’s failure to meet it.

 

The Superior Court of Pennsylvania affirmed the trial court’s dismissal of the man’s medical malpractice claim.

 

See: Russell v. Westmoreland County Cardiology, 2017 WL 2964524 (Pa. Super. Ct., July 12, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Blood Draws, Testing, Transfusions: Venipuncture Injury, Inaccurate Results, Tainted Blood - The Liability Risks

 

See also Medical Law Perspectives Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See the Medical Law Perspectives Blog: Medical Expert Testimony Not Necessary to Establish Standard of Care for Failure to Communicate Cancer Diagnosis

 

 

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