Expert’s Wrong Standard of Care Statement Did Not Void All Testimony

A 29 year old woman presented to the emergency room vomiting blood and passing blood through her rectum. These were symptoms of a massive upper gastrointestinal bleed caused by an almost daily use of nonsteroidal anti-inflammatory drugs (NSAIDS) and the presence of H. pylori bacteria. The woman was critically ill and had a chronic underlying disease: inflammatory polyarthtitis involving a number of joints. She also had Behcet's disease with difficult to heal ulcers in her mouth along with vasculitis.


A gastrointestinal physician was in the process of performing an endoscopy in an effort to determine the cause of the bleeding when the surgeon on call arrived. There was too much blood in the stomach for the camera to see into the duodenum, the section of the small intestine connected to the stomach. The gastrointestinal physician thought that the bleeding was coming from the duodenum. When the gastrointestinal physician said he could not stop the bleeding through endoscopic intervention, the surgeon decided to operate.


The surgeon first performed a gastrotomy, cutting into the woman's stomach and removing half a liter of clotted blood, and because there was so much clotted blood in her stomach it could not be evacuated by suction. He then repaired the bleeding duodenal arterial vessel in the second portion of the duodenum. In an effort to help the duodenum heal, he sealed off the pylorus, the opening at the base of the stomach, to prevent stomach fluids from entering the surgically repaired duodenum. He then performed a gastrojejunostomy, sewing another portion of the small intestine to the stomach so the stomach's contents could enter the small intestine. He also biopsied the ulcer.


Later that morning, the surgeon was contacted by the admitting physician who said there appeared to be a fair amount of blood draining from the surgical site. To the surgeon that meant bleeding must have developed after the surgery and further surgery was required to determine the source of the bleeding. The surgeon patched the areas believed to be the sources—the head of the pancreas, where he had observed seeping during the first surgery and an area in the mesocolon reflected away from the duodenum during the first surgery. He checked the sutures to the duodenum and those used in the gastrojejunostomy. Neither was bleeding.


While still in the hospital, the woman developed a marginal ulcer and the site of the gastrotomy seemed to be bubbling air, which meant the wound had not completely healed or had broken down. In a third surgery, performed about eighteen days after her initial surgeries, the surgeon found bleeding at a site along the anastomosis. He found the gastrojejunostomy was intact, as was the previous duodenum repair, but there was a significant amount of clotted blood in the right upper quandrant. The woman was transferred to another hospital ten days later. Surgeons there operated on her twice. She died fifteen days after the transfer.


The woman’s husband filed a complaint against the original surgeon and others on behalf of himself and, as guardian ad litem, his daughter. The complaint alleged that the woman died as a result of medical malpractice.


At trial, the family’s expert testified that having stopped the bleed, the surgeon should have done nothing else. The surgeon should not have performed the pyloric exclusion and the gastrojejunostomy. The surgeon’s expert disagreed, testifying that all of the procedures performed by the surgeon were appropriate.


The family’s expert testified that the standard of care was what a reasonable doctor would do in a similar circumstance. The surgeon’s expert testified that the standard of care was what a majority of practitioners would do in the community.


The Superior Court of Orange County instructed the jury on the applicable standard of care: “A surgeon is negligent if he fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful surgeons would use in the same or similar circumstances.” The jury found the surgeon did not act negligently. The court entered judgment in favor of the defendants and subsequently denied the family's motion for a new trial.


The woman’s family appealed, arguing that the evidence did not support the verdict. Specifically, the woman’s family argued that because the surgeon’s expert did not state the correct standard of care in his testimony, all of his testimony should have been disregarded by the jury.


California’s Fourth District Court of Appeal affirmed holding that the fact that the surgeon's expert misstated the standard of care did not mean the jury was required to accept the family’s expert's conclusion that the surgeon breached his duty of care. The court reasoned that the trial court properly instructed the jury on the standard of care. The family conceded that the surgeon’s expert was qualified as an expert and was competent to testify to what a reasonably prudent physician would have done in treating the woman. The jury was entitled to accept the surgeon’s expert's testimony concerning the appropriateness of the surgeon's actions. The jury’s finding that the surgeon was not negligent was affirmed.


See: Nguyen v. Guerrero, 2014 WL 28712 (Cal.App. 4 Dist., January 3, 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, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care