Error to Allow Patient’s Physician to Testify for Defendant Without Designation as Expert Regarding Staph Infection from Hip Injection

A man suffered from hip and back pain. His orthopedic surgeon ordered hip injections that contained steroids and long-acting numbing medications. The radiology residency director at a university's medical center conducted the first round of hip injections successfully. The second round of hip injections, conducted by a resident under the radiology residency director’s supervision, resulted in the man’s hip bone becoming infected with staphylococcus aureus. The infection led to hospitalization, debridement surgeries, inability to walk, nursing care, and hip replacement surgery.


The patient brought a medical malpractice action against the radiology residency director, alleging that she was negligent in her treatment and in her failure to obtain his informed consent. During trial, the court permitted the defendant to question one of the patient's orthopedic surgeons about his opinion of the radiology residency director's performance even though neither party had designated the orthopedic surgeon as an expert. The District Court entered judgment on a jury verdict for the radiology residency director. The Court of Appeals concluded that the trial court erroneously admitted the orthopedic surgeon's testimony about the standard of care, but that the error was not prejudicial because the parties' designated experts provided similar evidence.


The Supreme Court of Nebraska reversed and remanded. The court concluded that the trial court erred in refusing to give a curative instruction to the jury after admitting the orthopedic surgeon’s testimony. The orthopedic surgeon was not qualified to testify as an expert about the standard of care issues given that the radiology residency director, the defendant, had not designated the surgeon as an expert.


The court held that the error was reversible because, although the substance of the orthopedic surgeon's opinions was similar to that of the radiology residency director's expert, the weight of his opinions differed because the orthopedic surgeon, as the patient's treating physician, was cloaked in an aura of trust and respect. Prejudice was presumed since the orthopedic surgeon, testifying as an “expert” against the patient, was the patient's own treating physician.


See: Simon v. Drake, 285 Neb. 784, 2013 WL 1856791 (Neb., May 03, 2013).