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Neurologist’s Stroke Testimony Inadmissible for Emergency Medicine Specialist


A woman presented to the emergency room with symptoms of an acute stroke. She was treated by a doctor who was board certified in emergency medicine. She was also treated by a doctor who was board certified in internal medicine. The internist treated the woman both while she was admitted to the ER and to the Intensive Care Unit (ICU). Neither doctor administered tissue Plasminogen Activator (t-PA), a treatment that works best to help people with strokes caused by clots (ischemic strokes) when it is given right away after stroke symptoms begin.

 

The woman sued the emergency medicine specialist and the internist. Her complaint claimed that the doctors deviated from accepted standards of care in the treatment of her acute stroke symptoms. Her medical expert, a doctor board certified in emergency medicine, opined that her left leg weakness, lack of coordination, gait abnormality, flaccid arm, and need for assisted care to perform even basic hygiene and personal care resulted from the cerebrovascular accident (CVA) and left hemiplegia she suffered while under the ER doctors' care and that her injuries were a direct and proximate result of the doctors’ failure to administer t-PA.

 

The emergency medicine specialist provided an expert report from another doctor board certified in emergency medicine and an additional expert report from a doctor board certified in neurology. The neurologist opined that the woman was not a candidate for t-PA and her treatment did not deviate from the standards of neurological practice. The neurologist concluded that the exact onset of the stroke was unknown; the woman had relatively rapid improvement in symptoms and signs; and the subsequent completion of the stroke occurred many hours after initial onset well beyond the three-hour t-PA window.

 

The neurologist also provided a report based upon an Independent Medical Examination (IME) he performed on the woman. That report repeated most of what was contained in his earlier report. However, it omitted the conclusion in his earlier report that there was no deviation from the standard of care. It did not opine, within a reasonable degree of neurological certainty, the cause of the woman's stroke. Rather, it ruled out her being a candidate for t-PA treatment.

 

The internist provided an expert report from another board certified internist. The report opined that the woman’s treatment did not deviate from the standards of practice for internal medicine. The report also challenged the financial analysis from the woman's certified public accountant (CPA). He noted the CPA’s opinions as to the woman's likely advancement and compensation were more likely associated with an individual possessing a nursing degree—MS or BSN—rather than someone like the woman, who was employed full-time as a clerk and had several medical conditions. She had already had a transient ischemic attack (TIA) on a background of uncontrolled diabetes mellitus, uncontrolled hypertension, hyperlipidemia, and obesity.

 

The internist also provided the expert opinion of a neurologist. This neurologist opined that the woman's stroke “was due to progressive distal arterial thrombosis” and that her acute stroke did not result from “a deviation from the standard of care because there was no appropriate intervention, thrombolytic or mechanical, that could have impacted her neurological outcome.”

 

The woman moved to have the expert opinions of the neurologists and the internist barred on the grounds that they were not board certified in emergency medicine. The Essex County Superior Court of New Jersey, Law Division, denied the woman’s motion.

 

The Appellate Division of the Superior Court of New Jersey affirmed in part, reversed in part and remanded for further proceedings. The court held that the trial court did not err in denying the woman’s motion to bar the expert reports with regard to both of the internist’s medical experts and with regard to the emergency medicine specialist’s expert opinion from the emergency medical specialist. However, the trial court did err in denying the woman’s motion to bar the emergency medicine specialist’s expert opinion from the neurologist.

 

The trial court did not err in denying the woman’s motion to bar the expert reports with regard to both of the internist’s medical experts. The court reasoned that the internist was not functioning as an internist, but rather in an emergency capacity at the time of the alleged malpractice. Because the internist was not rendering care or treatment in his capacity as an internist, he was not required to produce an expert similarly credentialed. For all intents and purposes, he was functioning as a general practitioner at the time he treated the woman. The court held that, under those circumstances, there was no requirement that his experts be board certified in emergency medicine. Rather, the testimony of the internist’s medical experts was governed by N.J.S.A. 2A:53A–41b, which requires that expert witnesses on behalf of general practitioners shall have devoted a majority of his professional time to active clinical practice as a general practitioner, or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action. The woman did not contend that the internist’s experts did not meet the standards put forth in N.J.S.A. 2A:53A–41b.

 

The trial court did not err in denying the woman’s motion to bar the expert reports with regard to the emergency medicine specialist’s expert opinion from the emergency medical specialist. At the time the emergency medicine specialist provided treatment to the woman, she was acting in her board certified capacity in emergency medicine. Her expert who was board certified in emergency medicine was board certified in the same specialty or subspecialty.

 

The trial court did err in denying the woman’s motion to bar the emergency medicine specialist’s expert opinion from the neurologist. The neurologist’s testimony was not limited to a particular aspect of the medical malpractice claim, such as proximate cause or damages, rather than the applicable standard of care. The court noted that the neurologist’s testimony ruled out t-PA as a course of treatment, which indirectly expressed his opinion, contrary to the woman's expert, that the emergency medicine specialist did not deviate from acceptable standards of care when the specialist failed to administer t-PA. The neurologist was not equivalently-credentialed in emergency medicine. The court concluded the neurologist was not qualified to offer testimony on behalf of the emergency medicine specialist.

 

The Appellate Division of the Superior Court of New Jersey affirmed in part and reversed in part the trial court’s denial of the woman’s motion to bar expert reports submitted on behalf of the doctors.

 

See: Awuku v. Jones-Dillon, 2014 WL 3742747 (N.J.Super.A.D., July 31, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See also Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities

 

See also Medical Law Perspectives, May 2014 Report: Diabetes and Its Complications: Malpractice and Other Liability Issues

 

 

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