The Washington Court of Appeals recently overturned the summary dismissal of a medical negligence.[1] The patient went to a general surgeon for an enlarged thyroid. The general surgeon advised the patient that a subtotal thyroidectomy (removal of only a portion of the thyroid) was appropriate and performed the surgery.
During surgery he could not identify the left recurrent laryngeal nerve. He used “electrocautery” (cauterization using an electrical device) to divide the thyroid gland so he could remove part of it.
After the surgery, Ms. L had high-pitched harsh sounding respiration, called stridor. She was referred to an otolaryngologist who tried to correct the problem but was unsuccessful. She then sued the general surgeon who had performed the surgery, alleging that the general surgeon negligently performed the surgery.Ms. L retained two expert witnesses. Both are otolaryngologists, not general surgeons. Both do total thyroidectomy surgeries; neither does subtotal thyroidectomies. Both were conversant with Ms. L’s condition and the techniques for surgically correcting that condition. Both expressed opinions that the cause of the injury was the use of electrocautery too close of the left recurrent laryngeal nerve. But neither would express an opinion on the “standard of care” for general surgeons and neither performed subtotal thyroidectomies as a matter of practice.
The defending doctor moved for summary judgment relying on the refusal of the two plaintiff experts to express an opinion on the standard of care for a general surgeon. The judge concluded that the refusal of Ms. L’s experts to give opinions on the standard of care for a general surgeon was fatal to her claim and dismissed her suit.
The Court of Appeals reversed and remanded for trial.
The scope of an expert’s knowledge, not his or her professional specialty, governs “‘the threshold question of admissibility of expert medical testimony in a malpractice case.’” [2] “A physician with a medical degree is qualified to express an opinion on any sort of medical question, including questions in areas in which the physician is not a specialist, so long as the physician has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue in the . . . action.”[3]
Both plaintiff experts have medical degrees. Both have extensive experience in thyroid surgery and the potential complications. Both have basic training in general surgery. The trial judge agreed that they “are both well-qualified board certified otolaryngologists, who have experience and familiarity with thyroid disease and thyroidectomy.” They both have a working familiarity with the resulting complication – paralysis of the vocal cords and resultant stridor.
The defending doctor argued that these experts are not prepared to express opinions on the specific medical procedure that was performed and are not prepared to express opinions on the standard of care for a general surgeon performing this surgery.
The Court of Appeals found that the question is not whether the defending doctor was negligent for his decision to perform a subtotal thyroidectomy versus a total thyroidectomy or use of electrocauterization. The criticism of the doctor’s work concerns how he went about the surgery. And that includes allegations that he failed to identify the left recurrent laryngeal nerve and used electrical cauterization too close to that nerve.
The Court held that the experts are competent to testify as to the diagnostic and general surgical procedures during a thyroidectomy, including identification and protection of the recurrent laryngeal nerve. Both experts testified that the use of electrocautery within close proximity (less than 0.5 centimeters) of the recurrent nerve would be a violation of the standard of care for anyone who performs this surgery.
The Court concluded that the experts have the requisite knowledge about the standard of practice for anyone surgically treating this condition and should therefore be allowed to testify about that standard.
Schools of Medicine
The Court also rejected Dr. Conroy’s assertion that these experts are from different schools of medicine and, thus, should not be allowed to testify. The testimony should be allowed (1) where the methods of treatment in the defendant’s school and the school of the witness are the same, (2) where the method of treatment in the defendant’s school and the school of the witness should be the same, or (3) the testimony of a witness is based on knowledge of the defendant’s own school.[4]
In Miller, the court held “that a practitioner of one school of medicine may testify against a practitioner of another school of medicine when the methods of treatment of the two schools are or should be the same.”[5]
The defending doctor argued that the plaintiff’s experts are from a different school of medicine than general surgeons. They argued that the expert witnesses were not trained to perform subtotal thyroidectomies.
Ms. L argued that this case involves overlapping medical specialties in the same school of medicine and not differing schools of medicine.
The Court noted while it is true that that both experts testified that otolaryngologists generally do not perform subtotal thyroidectomies, both general surgeons and otolaryngologists do treat thyroid disease and perform thyroid surgery. Both testified that use of electrocautery within 0.5 centimeters of the laryngeal nerve is unacceptable for any surgeon performing thyroid surgery. The Court concluded that the methods of treatment of the two schools on this factual issue are, or should be, the same.
The Court held that whether the experts are trained specifically in the specialty of general surgery does not control whether they can express opinions on how to properly perform thyroidectomy surgery. Any differences in training would go to the weight the jury should give to their testimony. [6]
Standard of Care
Expert testimony on the standard of care does not have to be in standard-of-care terminology.[7] Courts look instead to the substance of the allegations and the substance of what the experts bring to the discussion. “To require experts to testify in a particular format would elevate form over substance.” It is only necessary that an expert’s opinion on the standard of care be based on general professional standards, rather than mere personal opinion.
The defending doctor argued that the plaintiff experts cannot testify about the applicable standard of care for a general surgeon performing a subtotal thyroidectomy because both experts admitted they did not know the standard of care for a general surgeon. But the Court noted that both testified that the use of electrocautery within 0.5 centimeters of the laryngeal nerve was below the standard of care for any surgeon and held that sufficient to submit the matter to a jury.
The threshold determination is whether a physician with a medical degree has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue, not whether the expert is capable of testifying about the specific training of a specific defendant.[8]
The Court held that the issue presented is the surgical management of a medical problem – diseased thyroid gland and whether the condition was appropriately or inappropriately managed. The experts manage this condition surgically. They are familiar with and prepared to testify about how the surgery should be done to avoid injury to the patient and specifically the injury that occurred.
The information in this post and elsewhere in this website is not a substitute for legal advice. If you have questions about medical malpractice or personal injury you should contact an attorney about your particular circumstances.
[1] Leaverton v. Conroy, No. 28846-3-III. Our law firm did not participate in this case.
[2] Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438, 445, 177 P.3d 1152 (2008).
[3] Id.
[4] Miller v. Peterson, 42 Wn. App. 822, 831, 714 P.2d 695 (1986).
[5] Id. at 832.
[6] Hill, 143 Wn. App. at 451.
[7] White v. Kent Med. Ctr., Inc., PS, 61 Wn. App. 163, 172, 810 P.2d 4 (1991).
[8] See id. at 173 (specialist allowed to testify as to the standard of care for a general practitioner); Hall v. Sacred Heart Med. Ctr., 100 Wn. App. 53, 995 P.2d 621 (2000) (medical doctor permitted to testify as to the standard of care for an intensive care unit nurse); Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001) (plastic surgeon allowed to testify as to the standard of care for an orthopedic surgeon specializing in musculoskeletal oncology).