By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Strategies
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: A woman received a kidney transplant after it was determined she suffered from fatal end-stage renal disease. The patient’s brother provided the transplanted kidney. Following the surgery, the kidney failed, and ensuing complications resulted in a removal of the transplanted kidney. After receiving an adverse decision in a medical review process, the patient and her brother filed suit for medical malpractice. Discovery revealed the plaintiffs did not intend to use an expert witness to determine the standard of care or otherwise testify. The defendants filed a motion for summary judgment, which the trial court granted.
In the resulting appeal, the appellate court determined that expert witness testimony was necessary to establish the plaintiff’s claims. As a result, the trial court’s grant of the defendants’ motion for summary judgment was upheld.
Background: In 2009, a woman presented to a hospital, where it was determined she was suffering from end-stage renal disease and placed on peritoneal dialysis. The patient needed a kidney transplant. She was briefed on the kidney transplant process, and consented to be evaluated for a transplant. It was determined that her brother would be her kidney donor.
The patient underwent surgery on May 11, 2010. Several days later, the patient’s transplanted kidney failed because she suffered from a twisted kidney, a condition associated with functional problems in the way urine drains to the bladder, and with vesicoureteral reflux — when urine flows backward through the urinary system. The patient underwent additional medical procedures to correct the problem, but these also failed, resulting in removal of the kidney.
Shortly after the patient was released from the hospital, she and her brother initiated a medical review panel process. The medical review panel found in favor of the healthcare providers, determining they did not breach the applicable standard of care. The plaintiffs proceeded to file a medical malpractice lawsuit, alleging negligence and failure to obtain informed consent. While many defendants were named in the seven different complaints filed, all were dismissed save for the initial surgeon (for causing the problem), the corrective surgeon (for failing to correct it), and the hospital (liable under applicable law for the actions of the surgeons).
Two years after filing the lawsuit, and six years from the initiation of the medical review panel, the remaining defendants filed motions for summary judgment, alleging that the plaintiffs lacked the necessary expert testimony to support the petition’s claims. After a hearing on the motions for summary judgment, the trial court ruled in favor of the defendants.
The plaintiffs then filed an appeal on the grounds that granting the motion for summary judgment was improper because the medical review panel did not conform with Louisiana’s Medical Malpractice Act and was inadmissible, the defendants failed to obtain the appellant’s informed consent, and expert witness testimony was unnecessary for some of the allegations. Before the hearing on the appeal, the patient died, and her brother proceeded on behalf of himself and the patient’s estate.
In its review of the case, the Louisiana Court of Appeal first noted the fact that at the trial level, the plaintiffs failed to timely file their opposition to the motion for summary judgment and filed the opposition with inadmissible attachments. The court then limited the scope of issues on appeal to whether the plaintiffs could prove their allegations of medical malpractice without the use of expert witness testimony.
In determining whether the trial court’s ruling on the summary judgment was in error, the court of appeal noted that only in cases where negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony can a plaintiff prevail without the use of an expert. The court then stated that in this case, involving a kidney transplant and other related procedures, a layperson could not ascertain the appropriate standard of care. The court addressed the lack of informed consent as well, and noted that the establishment of such a claim in Louisiana requires the identification of the risk and the probability of the risk occurring, which in turn require expert testimony to prove. The court of appeal thus affirmed the defendants’ motion for summary judgment.
What this means to you: This case clearly illustrates that expert testimony is critical in medical malpractice cases. Because of the plaintiffs’ failure to secure an expert on the standard of care, the issue of obtaining informed consent was not even reached by the court. This was important for the defense because, notwithstanding plaintiffs’ contention that the physicians did not inform them properly and obtain their consent, the plaintiffs signed nine consent forms. However, the appellate court noted it appeared the patient’s consent forms were signed by a family member on her behalf. If no oral information was given to the patient before the surgery commenced, there may have been an issue with the signer’s authority to sign on the patient’s behalf.
To avoid problematic informed consent allegations, medical professionals must ensure that individuals who sign on behalf of others are authorized to do so. A frequently used mechanism for verifying that authority is an executed and notarized power of attorney. More generally, physicians are required to provide complete information to patients about any procedure the patient requires so that the patient can decide whether to proceed. This information must include the risks that might occur, the benefits of undergoing the procedure, alternative treatments available, and expected recovery time. Informed of this, the patient can consent or refuse to proceed. Documentation by the physician in the patient’s medical record is mandatory, including the patient’s understanding of the information.
Furthermore, the informed consent cannot be provided by a nurse or any other non-independently licensed individual and must be provided to the patient unless there is a documented reason why the patient is mentally unable to receive, process, understand, and conclude from the information whether to have the procedure. Providing informed consent to a family member, friend, or other representative of the patient is not acceptable if the patient has the capacity to understand it. Often, the opinion of a psychiatrist is required before informed consent can be provided to someone other than the patient. It is helpful if patients without capacity have advance directives, developed when the patient had capacity, to guide others about the patient’s choices of a decision-maker and his or her wishes for life-sustaining measures should the patient’s condition deteriorate. Physicians often misstep during the informed consent process and later find themselves in legal battles over failures of critical parts of the process.
Finally, this case shows the importance of understanding the applicable standard of care in a case. The court rejected the plaintiffs’ contention that a layperson could ascertain the standard of care for a kidney transplant without the aid of an expert witness. The court of appeal gave the following non-exhaustive list of circumstances in which the standard of care is readily determined by a layperson: fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body. This list makes it clear that complex surgeries generally will not fall into the category of cases in which expert testimony on the standard of care is unnecessary. In any medical malpractice matter involving a complex surgery, it is critically important for both sides to line up supporting expert witnesses at the outset of the case.
REFERENCE
Decided on April 5, 2017, in Court of Appeal of Louisiana, Fourth Circuit, Case No. 2016–CA–0873.
A defendant hospital prevailed on a suit involving a kidney transplant, in a case that highlights the importance of expert witness testimony.
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