Expert Required for Causation in Eroded Dialysis Graft Case

A woman was diagnosed with end-stage renal disease and was required to undergo hemodialysis (dialysis) three times per week. In order to facilitate the dialysis process, the woman underwent surgery to insert a left brachial artery to brachial vein arteriovenous graft (A/V graft). She received regular dialysis treatment via the A/V graft at a dialysis center.


The woman was under the care of a nephrologist. The last time that the woman saw the nephrologist was during one of her dialysis sessions. In his notes from that date, the nephrologist indicated that the woman's A/V graft was functioning well. About fourteen days later the woman received dialysis at the dialysis center and, when she was finished, at approximately 8:45 a.m., she was sent home. At approximately 4:15 p.m. on that same afternoon, the woman called emergency services because she was bleeding from her A/V graft. The woman died later that day. According to the autopsy report, the cause of death was hemorrhaging due to cutaneous erosion of her A/V graft.


The woman’s daughter sued the dialysis center and the nephrologist to recover damages for medical malpractice. At trial the daughter called one expert witness, a nephrologist. This expert testified that the treating nephrologist and dialysis center departed from good and accepted medical practice in failing to refer the woman to a vascular surgeon or to the hospital, either when she was last seen by the nephrologist or when she completed her last dialysis treatment, so that the A/V graft could be evaluated. At the close of evidence, the doctor and dialysis center filed for a judgment as a matter of law. The Queens County Supreme Court granted the motion and dismissed the complaint.


The New York Supreme Court, Appellate Division, Second Department, affirmed. The court noted that while the daughter had offered expert testimony that the woman should have been referred to a vascular surgeon or the hospital, the daughter did not offer any expert testimony as to what, if anything, would have been done for the woman, if she had been so referred. The daughter's expert stated that only a vascular surgeon could determine if the graft needed to be revised, and he further opined that a functioning graft would not have been removed. In addition, there was no medical evidence to show that, had the woman been referred to a hospital, she would have been admitted, or that it was medically necessary to make any alteration regarding the A/V graft at that time.


The court held that establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury. The court reasoned that since the daughter failed to meet her burden of presenting medical evidence demonstrating that the alleged departure proximately caused the woman's subsequent injury or death, the jury would have had to speculate as to causation. The court concluded that under these circumstances, it was proper for the Supreme Court to grant the defendants' motion for judgment as a matter of law dismissing the complaint.


See: Brown v. Shah, 2013 WL 5340369, 2013 N.Y. Slip Op. 05980 (N.Y.A.D. 2 Dept., September 25, 2013) (not designated for publication).