Appellate Court Reverses Summary Judgment Based on Expert’s Disqualification
March 1, 2020 6 minutes read
News: A 68-year-old patient sustained neurological damage in her right arm after a hospital’s radiologic technologist failed to properly place an IV in her vein, and instead injected contrast dye directly in the patient’s tissue. The patient filed a medical malpractice lawsuit against the hospital. During trial, the defendant hospital brought a motion for summary judgment, seeking an expedited adjudication based on the lack of any material issue. The trial court granted the defendant’s motion.
The patient appealed the decision, which ultimately was reversed. The appellate court found the technologist was qualified to render an expert opinion on the medical causation of the patient’s injuries, and that an issue of material fact existed as to whether the alleged negligent behavior was the proximate cause of the patient’s injuries. The matter was sent back to the trial court.
Background: On June 8, 2015, a 68-year-old patient entered a hospital for a scheduled CT scan with contrast dye. The scan was to be performed to rule out a pulmonary embolism. Previously, the patient had undergone the same test without experiencing adverse effects. At the hospital, the patient warned the radiologic technologist that she had always been a “hard stick,” to which the technologist replied that she had been performing the job for 25 years. After inserting the IV into the patient’s right forearm, the technologist left the room and went behind the barrier to avoid radiation. At this point, a 30 mL test dose of dye was injected into the patient’s arm. The injection was controlled remotely from behind the protective barrier.
As the dye entered the patient’s system, she immediately started complaining of pain. The patient’s pain grew in intensity and she realized that the dye was entering her tissue and not her vein, which she claimed to have shared with the technologist. The entire dose of the contrast dye was injected, and the patient was placed into the X-ray machine. As soon as the scan began, the patient began screaming in pain and asking to be taken out of the machine because the pain had become too severe and had moved from her arm to her shoulder.
According to the technologist’s statement, within five or six seconds of the injection, the technologist was unable to visualize any contrast in the patient’s chest. A second technologist arrived, and inserted a new IV into the patient’s left arm. The dye was injected through the new IV, and the scan was repeated. During this second scan, the patient did not experience any pain. Prior to discharge, the technologist noticed a small swelling on the patient’s right arm and suspected that an infiltration had occurred. She applied a dressing around the patient’s arm, and warned the patient that she may experience bruising and swelling. The technologist did not notify the hospital’s radiologist about the infiltration. Within a few hours of returning home, the patient’s arm became so swollen that her flesh broke open and discharged fluid. After calling the hospital’s imaging department and explaining what happened, the patient was instructed to alternate hot and cold compresses and go directly to the ED if her conditioned worsened. Around 10 p.m. on the evening of her discharge, the patient presented to the ED, where she was given morphine for her pain. She underwent surgery for what was diagnosed as severe IV contrast extravasation.
The patient filed a medical malpractice suit, alleging the initial IV and injection, as well as the failure to timely treat it on discovery, constituted negligence. The patient claimed that she suffers daily pain throughout her arm, diminished strength, and involuntary spasms, in addition to the substantial emotional pain and suffering. The defendant denied liability and filed a motion for summary judgment, seeking to resolve the litigation before trial based on a lack of any material issue of fact. The defendant’s motion was based on the patient’s expert witness, arguing that the expert was unqualified. The trial court granted summary judgment, but an appellate court reversed that determination.
What this means to you: This case demonstrates the importance of expert witnesses, which not only can determine a case at trial, but even potentially before trial. Although the outcome of this case remains uncertain, and the patient has not been awarded any monetary damages, the appellate court ruling certainly is a setback for the defendant care provider, and reopens a window of opportunity for the patient to continue the allegations of malpractice.
The defendant hospital initially was successful in obtaining a successful defense judgment based on undermining the patient’s expert witness. Although the ruling was reversed on appeal, not all patients are capable of appealing or pursue such appeals. Early challenges may prove invaluable for defense care providers.
The court granted the defendant’s motion for summary judgment and determined the plaintiff’s expert witness was not qualified to provide an opinion. In fact, while both sides recognized that a genuine issue of material fact existed as to whether the plaintiff’s injuries had been caused by the dye and as to whether the technologist had failed to follow hospital policy, the defense proffered that a radiologic technologist was not sufficiently qualified to offer expert testimony, and the plaintiff had failed to present any evidence in favor of her argument.
The trial court ruled in favor of the defendant and granted the hospital’s motion for summary judgment. The patient appealed the motion, arguing that a radiologic technologist was sufficiently qualified to offer expert opinion as to whether the injuries sustained by the patient could have been caused by the contrast dye. In its analysis, the appellate court discussed the applicable rules on expert witnesses. While recognizing that nonpracticing physicians could not offer expert testimony, the rule was not a “blanket rule.” Specifically, regarding the medical causation issue, if the issue is not complex, a nonphysician healthcare provider may testify, provided he or she has acquired sufficient expertise through experience.
The patient’s expert radiologic technologist witness provided an affidavit in which he asserted that the hospital’s radiologic technologist violated hospital protocol in the administration of the contrast dye, and that it was his professional opinion that the negligence in administering the contrast dye directly and proximately caused the patient to suffer from injuries including neurological damage. When inserting an IV, the technician should have visualized blood rushing back into the IV catheter. If no blood visualized, then the catheter is not in the vein. Furthermore, if a patient complains of pain during an infusion, it should be stopped and an assessment immediately made as such levels of pain are not normal. According to the patient’s expert, the failure to re-evaluate constitutes medical malpractice.
Given the appellate decision and the facts of the case, it seems the patient will be able to present a compelling argument. Specifically, the events that occurred in the imaging room indicated the hospital’s radiologic technologist did not respond to the patient in a timely manner. As the test dose of the dye was injected, the patient informed the technician that she was experiencing pain. As the patient explained, it was not her first time receiving this type of scan, and she had not previously experienced any discomfort. This information alone should have been sufficient to warn the technologist that something was abnormal since the patient’s reaction to the dye was substantial pain. The fact that the patient did not experience any discomfort when the second technician placed a new IV in the patient’s other arm and began injecting the dye is further evidence confirming the initial inadequate care.
Another lesson from this case is the importance of listening to a patient’s concerns and complaints, and taking appropriate, prompt action. In this case, the patient complained about significant pain from administration of the first IV, and such substantial pain is atypical. Patients inherently experience different pain tolerances, but some procedures objectively should not cause such levels of pain to warrant complaint beyond minor discomfort. This especially is true for patients who have experienced the procedure before and have a frame of reference. When undergoing the same procedure, but with different pain results, something may be wrong. Physicians and care providers, including hospital staff, should be aware of patient complaints and evaluate when such complaints warrant action, or when such complaints are to be expected for procedures that inherently involve a higher level of pain. Starting an IV and administering fluids through an IV objectively should not incur more than minor discomfort. Care providers should carefully evaluate patients complaining of substantial pain under unusual circumstances. The failure to do so when a reasonable physician under the same or similar circumstances would do so may constitute malpractice.
REFERENCE
Decided on Oct. 29, 2019, Court of Appeals of Indiana, Case No. 19A-CT-844.
This case demonstrates the importance of expert witnesses, which not only can determine a case at trial, but even potentially before trial. Although the outcome of this case remains uncertain, and the patient has not been awarded any monetary damages, the appellate court ruling certainly is a setback for the defendant care provider, and reopens a window of opportunity for the patient to continue the allegations of malpractice.
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