EMAIL TO A FRIEND COMMENT

 

Expert Unreliable on Standard of Care; Had Not Performed Procedure or Been Trained, and Did Not Cite Authority


A woman underwent a dilation and curettage (D & C), a procedure during which a curette—a sharp metal instrument—is used to scrape an area in the uterus, to remove polyps. Prior to curetting, the OB/GYN rechecked the placement of the Essure devices. An Essure device consisted of a coil, described as an almost slinky type looking object, which was placed in each fallopian tube, near the opening to the uterus. After placement of the coils, over a period of three months, scar tissue formed around the coils, occluding the tubes and preventing sperm from passing through and permanently sterilizing the woman.

 

After this procedure, the woman discovered that her Essure devices were disrupted. She underwent a subsequent surgery to address this disruption.

 

The woman sued the OB/GYN and her practice group. At trial the woman’s medical expert, a board certified OB/GYN, testified that the applicable standard of care required OB/GYNs to recheck the placement of Essure coils after curetting. The expert opined that, had the woman’s OB/GYN done so, she could have ascertained a disruption to the Essure coils and taken measures to remove the coil, which would have prevented the need for the woman's subsequent surgery. Because the OB/GYN failed to recheck the placement of the coils, the expert opined that she breached the standard of care.

 

The woman’s medical expert based his opinions on his general understanding of female anatomy and his experience with devices such as intrauterine devices (IUDs), opining, for example, that “you wouldn't put an IUD in and then curette someone afterward.” However, when specifically asked for the basis of his opinions in this case, he could not point to any supporting authority, either in peer-reviewed literature, case studies, or even in the recommendations of the manufacturers of the device in question. In fact, he acknowledged that he had not specifically searched for any literature regarding the Essure device and its complications, he was not aware of any specific studies or case reports relating to similar Essure complications, and he could not cite to any specific article in support of his opinions. The woman also did not support his testimony with any supporting authority.

 

The Oakland Circuit Court granted a directed verdict in favor of the OB/GYN and her practice group.

 

The Court of Appeals of Michigan affirmed. The court held that the woman’s medical expert failed to provide reliable testimony as to the applicable standard of care and, although the expert satisfied the qualification requirements, he lacked the requisite knowledge, skill, experience, training, or education to qualify as an expert.

 

The woman’s medical expert failed to provide reliable testimony as to the applicable standard of care. The court held that for a plaintiff to satisfy his or her burden, it was not sufficient to simply point to an expert's experience and background to argue that the expert's opinion was reliable and, therefore, admissible. The court found that the woman failed to provide any support for her medical expert's opinion regarding the applicable standard of care. The medical expert repeatedly stated that he arrived at his opinion through his training and experience, and vaguely referenced readings relating generally to IUDs, without any support for his concerns relating to curetting following placement of the Essure devices. The reliability of his opinion, in regards to the Essure device, based on his own experience was questionable at best when he had never performed the procedure himself and he had extremely limited training with the device. The court reasoned that even more detrimental to his claimed expertise was the complete lack of supporting authority of any kind to demonstrate that his opinion had some basis in fact, that it is the result of reliable principles or methods, or that he applied his methods to the facts of the case in a reliable manner. Evidence offered by the OB/GYN and her practice group countered his view of the desirability of performing the D & C before placement or, at a minimum, rechecking placement of the Essure coils following curetting. Specifically, the treating OB/GYN saw nothing wrong with curetting following placement of the Essure device, testifying that the curetting procedure was gently done and that the polyp area that was curetted was on a completely different operational plane than the fallopian tubes where the coils were placed. The court concluded that the only basis for the expert's opinion regarding the standard of care for curetting following an Essure placement was his general experience in gynecology and obstetrics. This alone did not render his testimony reliable. The opinion of one professional regarding how the procedures should have been done did not, by itself, establish the standard of care. Given the lack of supporting literature, combined with the lack of any other support for the expert's opinion regarding the standard of care, the trial court did not abuse its discretion in finding his opinion regarding the standard of care to be unreliable. Absent the expert's testimony on the standard of care, the woman could not meet her burden of establishing the standard of care or offering expert testimony in support thereof and a directed verdict was properly granted.

 

Although the expert satisfied the qualification requirements, he lacked the requisite knowledge, skill, experience, training, or education to qualify as an expert. The trial court did not abuse its discretion in finding the expert qualified because he devoted a majority of his time to general obstetrics and gynecology. The treating OB/GYN was a board certified obstetrician and gynecologist who devoted a majority of her time to general obstetrics and gynecology. The expert was also a board certified obstetrician and gynecologist, thus satisfying the same board certification requirement. The court held that infertility was a specialty for purposes of determining if they expert and defendant practiced the same specialty. The expert testified that he spent 15 percent of his time on obstetrics, and 85 percent on gynecology. Of that 85 percent, about 50 percent was spent on general gynecology and 50 percent was focused on infertility. In other words, he devoted a total of 57.5 percent of his time to general obstetrics and gynecology, and 42.5 percent spent on infertility. The court concluded that the majority of the expert’s time was spent practicing the same specialty as the treating OB/GYN.

 

However, though the expert satisfied the qualification requirements, he lacked the requisite knowledge, skill, experience, training, or education to qualify as an expert and, as such, the trial court erred in declining to strike his testimony before trial. In particular, the procedure in question in this case involved the placement of Essure coils in the woman's fallopian tubes. The woman offered the expert's testimony to provide evidence regarding the standard of care, breach thereof, and causation. However, by the expert's own admission, he had never performed the procedure in question, nor had he ever even been present in an operating room while the procedure was performed. His training relating to the device arose from one dinner presentation two or three years before trial at which simulations of the procedure were performed on a mannequin. Given that he has never performed the procedure and he has received only minimal instruction on the topic, the court held that he could not qualify as an expert on the topic by reason of knowledge, skill, experience, training, or education. The court concluded that the trial court abused its discretion in denying the OB/GYN’s and her practice group's pretrial motion to strike the expert's testimony. In the absence of this testimony, no material question of fact existed regarding the woman's claim and the OB/GYN’s and her practice group were entitled to summary disposition.

 

The Court of Appeals of Michigan affirmed the trial court's decision to grant a directed verdict in favor of the OB/GYN and her practice group.

 

See: Lewis v. Yancy, 2014 WL 3928792 (Mich.App., August 12, 2014) (not designated for publication).

 

 

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