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Net Opinion Rule Bars Expert on Ureter Damage during Ovary Removal


A woman underwent surgery to remove her right ovary. After the surgery, it was discovered that the woman’s right ureter was damaged. The woman underwent a second surgery to repair her right ureter.

 

The woman and her husband sued the doctor who removed the ovary and the hospital where the procedure was performed. The couple served the report of their standard of care expert. In the report the expert opined that the doctor departed from normal standards of gynecological surgery by failing to diagnose the ureteral injury, which occurred during the ovary removal surgery.

 

The Superior Court of New Jersey, Law Division, Camden County, barred the couple’s expert’s report as a net opinion and granted summary judgment in favor of the doctor and hospital. The trial court found that (1) the expert never provided an opinion as to how the injury occurred, and merely stated that a surgeon needs to detect a ureteral injury; (2) the expert did not identify what method of detection is required by the standard of care or if any method was performed; and (3) the expert failed to provide standards against which to measure the woman’s bleeding. Based upon the trial court decision barring the couple from relying on the expert’s report, the trial court granted the doctor’s and hospital’s motion for summary judgment.

 

The Superior Court of New Jersey, Appellate Division, affirmed. The court held that the trial court did not abuse its discretion in barring the expert’s report as a net opinion.

 

The trial court did not abuse its discretion in barring the expert’s report as a net opinion. The net opinion rule directs that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. Expert opinions must be grounded in facts or data derived from (1) the expert’s personal observations, (2) evidence admitted at the trial, or (3) data relied upon by the expert that is not necessarily admissible in evidence but which is the type of data normally relied upon by experts. The court noted that the expert cited no standards, guidelines, or protocols governing the procedure the doctor performed on the woman or the standard of care he should have employed. The expert did not explain how the ureter injury occurred or describe the method the doctor should have used to prevent or detect the injury. With regard to the woman’s bleeding, the expert provided no reference point regarding a normal amount of bleeding that could be expected during surgery. Without such a reference point, the expert’s conclusion that the woman suffered excessive blood loss was unsupported. Finally, the expert acknowledged that an injury to the ureter was a recognized risk of the procedure. However, the expert failed to explain any causal connection between a deviation from the standard of care and the woman’s injury.

 

The Superior Court of New Jersey, Appellate Division, affirmed the trial court’s bar of the couple’s expert’s report as a net opinion and the grant of summary judgment in favor of the doctor and hospital.

 

See: Dielmo v. Ances, 2015 WL 7199355 (N.J.Super.A.D., November 17, 2015) (not designated for publication).  

 

 

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