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Failure to obtain experts: case dismissed-except as to 'consent' issue.

ALL TOO OFTEN PLAINTIFFS IN MEDICAL MALPRACTICE CASES ARE UNABLE TO OBTAIN/AND OR AFFORD THE COST OF RETAINING THE MEDICAL EXPERTS NECESSARY FOR THEM TO PREVAIL. If a case is not meritorious, it may not matter. However, in all too many cases, plaintiffs are unable to prevail because they either cannot locate a suitable expert or experts and/or cannot afford to retain them. Was this such a case?

BARBARA BROWN'S MOTHER DIED ON JUNE 12, WHILE IN THE CARE OF ONE OF JOHN C. LINCOLN'S HEALTH NETWORK (JCL) HOSPITALS. On June 11, 2009, Barbara sued JCL alleging medical malpractice relating to a feeding tube procedure performed on her mother in the JCL hospital. Barbara subsequently disclosed the "preliminary expert opinion affidavit" of her mother s primary care physician, outlining the ways in which JCL and its staff had acted "in violation of the standard of care," and "the manner in which the negligent acts cause" her mother's death. At a pretrial conference, however, Barbara advised the court she had decided not to rely on the physician as an expert witness at trial. In response, the superior court informed Brown, "[i]f you don't disclose a standard of care expert who provides an opinion that there has been some problem with respect to the care of you mother, then you don't have a case," and ordered deadlines for disclosing expert witnesses. On July 30, 2010--the date the superior court had ordered Barbara to file her "final expert witness disclosure"--Barbara asked the court to, first, extend her time for disclosure, second, appoint an expert under Arizona Rues of Evidence with the parties sharing the cost, and third, allow her to "provisionally" rely on JCL's employees as "adverse expert" witnesses. JCL objected to her requests and moved for summary judgment, arguing that because the primary care physician was not a qualified expert and JCL's employees would not testify they had acted negligently, Barbara lacked any expert testimony and, thus, had failed to prove a prima facie case that JCL breached the applicable standard of care and cause Barbara's damages. After hearing argument on the parties' motions (the "summary judgment hearing"), the Superior Court denied Barbara's requests, and granted JCL's motion for summary judgment. Barbara moved for a new trial arguing, as relevant here, the court improperly found an expert was necessary and should have appointed an expert. The Superior Court summarily denied Barbara's motion for a new trial. Barbara appealed.

THE COURT OF APPEALS OF ARIZONA REVERSED THE SUPERIOR COURTS JUDGMENT IN PART, AFFIRMED IT IN PART, AND REMANDED THE CASE FOR FURTHER PROCEEDINGS ON THE LACK OF CONSENT CLAIM. The court held, inter alia, that it agreed with Barbara's contention that the Superior Court erred in granting JCL's motion for summary judgment when she did not have a "retained testifying medical expert," because "no expert witness is required for an intentional tort, including battery." The court went on to note that the Supreme Court of Arizona has explained: Claims involving lack of consent, i.e., the doctor's failure to operate within the limits of the patient's consent, may be brought as battery actions. In contrast, true "informed consent" claims, i.e., those involving the doctor's obligation to provide information, must be brought as negligence actions. Although negligence or "lack of informed consent," claims require proof by expert testimony, battery, or "lack of consent," claims do not. Accordingly, the court remanded the case back to the Superior Court for trial on the informed consent claim.

THE COURT REJECTED BARBARA'S CONTENTION THAT NO EXPERT MEDICAL WITNESSES WERE REQUIRED. The court rejected Barbara' contention that no expert testimony was required because she presented evidence that JCL violated federal and state regulations regarding informed consent and the use of feeding tubes, and its own policies regarding informed consent. The court rejected her contention in this regard. The court pointed out that the existence of a hospital protocol, although it might be some evidence of the standard of care, does not compel the conclusion that a policy of a health care provider will always equate with the standard of care. Barbara was compelled to "prove the causal connection between the allegedly negligent acts or omissions committed by JCL were the direct and proximate cause of her mother's death. The court concluded that Barbara's evidence of the causal connection between the acts or omissions of JCL were insufficient to meet the requirements for her to prove her case for negligence or medical malpractice. Despite Barbara's contention that she could not afford to retain and pay for the medical experts who might have been able to allow her to avoid summary judgment and possibly prevail on her claim, if warranted by the evidence and testimony of her expert witnesses, vis a vis the expert medical witnesses who were prepared to testify, for JCL. Brown v. John C. Lincoln Health Network, 1CA-CV 11-0230 AZAPP1 (6/15/12)-AZ

A. David Tammelleo JD Editor & Publisher
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Date:Jul 1, 2012
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