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Internet Medical Info Insufficient to Challenge CRPS Expert


A woman injured her knee in a fall. She underwent surgery on her knee to repair a torn meniscus. Her knee pain continued, and she consulted an orthopedic surgeon employed by a healthcare organization. The surgeon found that her meniscus was still torn and performed a second surgery. During the surgery, the orthopedic surgeon removed some fluid from the woman’s knee. Upon analysis the fluid revealed no infection.

 

Immediately after the surgery, the woman’s knee improved. However, within a week her knee became swollen, red, and painful. The orthopedic surgeon’s physician’s assistant (PA) examined her and prescribed antibiotics for a skin infection. Nine days after her surgery, she presented to the emergency room. The orthopedic surgeon came to the ER and diagnosed her with a common skin infection and prescribed her a different antibiotic. Five days later, the woman called the orthopedic surgeon and said her knee still hurt and was draining fluid. The orthopedic surgeon told her to continue taking the antibiotics. Nineteen days after surgery, the PA examined her again and thought she had a skin infection.

 

Thirty-five days after surgery, the PA aspirated the woman's knee and had the fluid tested. Three days later, the results came back positive for methicillin-resistant Staphylococcus aureus (MRSA). The orthopedic surgeon wrote a prescription for intravenous antibiotics. The woman saw the orthopedic surgeon eleven days after the positive MRSA test results. He performed a surgery two days later to wash out the MRSA. The woman required two more washout surgeries, and eventually needed a knee replacement. Her knee pain continued despite the knee replacement, and her treating physician diagnosed her with Complex Regional Pain Syndrome (CRPS), a chronic pain condition caused by a nerve injury.

 

The woman sued the orthopedic surgeon and the healthcare organization for medical malpractice, alleging the orthopedic surgeon did not act quickly enough to diagnose and treat the MRSA infection, thus necessitating aggressive medical treatments that resulted in permanent impairment. The orthopedic surgeon and the woman settled days before trial. The healthcare organization proceeded to trial. The jury returned a verdict in favor of the woman for over $7 million. The Gila County Superior Court denied the healthcare organization’s motion for new trial.

 

The Arizona Court of Appeals, Division 2, affirmed. The court held that the woman’s medical expert’s testimony was admissible, the woman provided a proper foundation to testimony about the cost of her future medical care, the affidavit and deposition testimony of the expert regarding the PA’s standard of care were detailed enough for the healthcare organization to prepare its case, the trial court’s approval of the settlement agreement between the woman and the orthopedic surgeon did not necessitate the dismissal of the vicarious liability claims against the healthcare organization based on the orthopedic surgeon's actions, the settlement agreement was not collusive, and the amount of the verdict was supported by sufficient evidence.

 

The woman’s medical expert’s testimony was admissible. The healthcare organization argued that the woman’s medical expert’s diagnosis of CRPS and his causation opinion lacked reliable or scientific grounds such that the trial court should have conducted a Daubert hearing before trial and precluded the testimony. The appellate court held that when a properly qualified physician with expertise in a recognized medical condition opines on the cause of the condition in a particular patient based on his examination and testing, such testimony is admissible unless the opponent proffers scientific evidence challenging the reliability of the underlying principles and application. The court reasoned that based on his testimony that he was the chief of pain medicine at the University of California, Los Angeles Medical School and a professor of internal medicine and anesthesiology with extensive experience with CRPS, a condition recognized by the American Medical Association and taught at medical schools, the woman’s physician was properly qualified with expertise in a recognized medical condition. The expert testified that CRPS is caused by trauma, surgery is a traumatic injury, and therefore, more likely than not, it was one of the surgeries after the MRSA diagnosis that caused the CRPS.

 

The healthcare organization did not present to the trial court in its Rule 702 motion scientific literature undermining the reliability or application of this expert’s causation opinion. Instead, the healthcare organization relied on two medical information sheets from the internet. Both documents included disclaimers that the information could not be used for the diagnosis or treatment of any medical condition. The information sheets were unsigned and without endorsement by a recognized body. Moreover, there was no suggestion that the information represented a consensus in the pain management field. When examined about the information sheets, the woman’s medical expert testified that the molecular mechanism of CRPS is not clearly understood, but the medical cause, traumatic injury, was well documented. The court held that reliance on internet-based general medical information with disclaimers against using the information for medical diagnosis and treatment does not satisfy Rule 702’s requirements. The court concluded that the trial court did not abuse its discretion by admitting the woman’s medical expert's diagnosis of CRPS and his causation opinion.

 

The woman’s experts provided a proper foundation for their testimony regarding the cost of her future medical care. The healthcare organization argued that the woman’s medical expert should have testified at trial that each specific element of the life care plan was medically necessary. The woman’s life care plan developer testified that she relied on her own observations and experience, as well as input from medical doctors, and readily-available pricing information for procedures, medications, and other line items. She explained she had twenty years of experience preparing life care plans. To prepare the plan here, she met with the woman and spoke to the CRPS expert on two occasions. She also spoke to another doctor regarding orthopedic items on the plan. She testified she typically relied on physicians to provide medical justification for individual line items in the life care plan, and then she would determine the cost to build the plan. Regarding the reasonableness of costs, the life care plan developer testified her expertise includes the calculation of the costs of the plan, but the doctors determined whether a particular line item was appropriate. She also testified her methods and life care plan are accepted by those in her field with her level of expertise. The court concluded that the healthcare organization failed to show that the life care plan developer's testimony was not based on facts or data on which those in her field would reasonably rely. The trial court did not err in admitting the life care plan developer's testimony and life care plan and, therefore, did not err in denying the motion for a new trial on this basis.

 

The woman provided sufficient pretrial discovery regarding the standard of care applicable to a PA for the healthcare organization to prepare its case. The healthcare organization argued that the trial court abused its discretion in allowing the admission of opinions by the woman’s expert on the standard of care applicable to a PA that had not been properly disclosed before trial. At trial, the woman’s PA expert testified about the standard of care of a PA, stating it required proper communication between a PA and a doctor, and further opining the PA cannot stay quiet if he or she believed the doctor was letting too much time pass between a MRSA diagnosis and treatment. The PA expert’s pretrial disclosure affidavit did not include a discussion of PA-physician communication protocol and a PA's duty to remind a doctor about a MRSA diagnosis. Rather, it focused more generally on the delay in the woman's treatment after the MRSA diagnosis. However, the PA expert testified about the communication failures during his deposition six months before trial and opined that the PA’s failure to communicate with the orthopedic surgeon constituted a violation of the standard of care. The court found that the affidavit and deposition testimony together were detailed enough for the healthcare organization to prepare its case. Therefore, the trial court did not abuse its discretion in admitting the PA expert's testimony, nor in refusing to grant a new trial on this basis.

 

The trial court’s approval of the settlement agreement between the woman and the orthopedic surgeon did not necessitate the dismissal of the vicarious liability claims against the healthcare organization based on the orthopedic surgeon's actions or omissions. Under the terms of the agreement, the orthopedic surgeon's own insurance carrier, which had a $1 million policy limit, would pay the woman $950,000 in exchange for dismissing the claims against the orthopedic surgeon without prejudice and agreeing to a covenant not to execute in his favor. The healthcare organization argued the dismissal and covenant constituted a release and compromise of the claims against the healthcare organization as well. The court held that there was no judgment on the merits regarding the orthopedic surgeon. A dismissal without prejudice even when the statute of limitations has run is not a dismissal on the merits. Additionally, a covenant not to execute is not a release from liability. Neither the dismissal without prejudice nor the covenant not to execute constituted a release from liability. The court concluded that the trial court did not err in denying the motion for judgment as a matter of law and therefore did not abuse its discretion in denying the motion for a new trial on that basis.

 

The trial court did not err in determining the settlement agreement was not collusive. The healthcare organization may not have expected the orthopedic surgeon to settle, but its motive and tactics in defending the case did not change. The court reasoned that the healthcare organization's liability was based on the acts of the orthopedic surgeon and his PA, whether the orthopedic surgeon was a party to the case or not. The orthopedic surgeon did not reverse course at trial and testify that he remembered the MRSA diagnosis. Rather, he said he had no personal recollection of the diagnosis, but the existence of an antibiotic prescription in the chart indicated that he knew earlier than he originally stated in his deposition. The settlement agreement was disclosed to the trial court, did not result in a “sham” trial lacking adverse parties, and did not require that the healthcare organization change its tactics or motives in defending the case. The court concluded that the trial court did not err in approving the settlement agreement, or in denying the motion for a new trial on that ground.

 

The trial court did not err in denying the healthcare organization’s motion for a new trial because the verdict was supported by evidence. In total, the woman provided evidence of economic losses of up to $3.5 million. The jury was instructed to compensate the woman not only for her existing and future medical bills or lost earnings, but also for damages including pain, disfigurement, anxiety, and loss of enjoyment. The woman demonstrated for the jury that her knee was locked in position, requiring her to walk on her toes. Her boyfriend testified that riding in the car caused her pain, and she cannot travel long distances. The healthcare organization's own expert agreed the woman's pain was real. Because reasonable people may differ as to how much the woman should have been compensated for her pain, the court did not find the trial court erred denying the motion for a new trial.

 

The Arizona Court of Appeals, Division 2, affirmed the trial court’s denial of the healthcare organization’s motion for new trial.

 

See: Sandretto v. Payson Healthcare Management, Inc., 2014 WL 949104 (Ariz.App. Div. 2, March 11, 2014) (not designated for publication).

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

See also Medical Law Perspectives, December 2011 Report: When Pain is the Only Proof: Subjective Impairments

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements

 

 

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