News: A patient underwent surgery for implantation of a spinal cord stimulator. Following the surgery, the patient sneezed or vomited and heard a “pop.” Imaging revealed the device moved, necessitating a second surgery.
The patient filed a malpractice lawsuit, alleging that the surgeon negligently installed the device, which allowed it to move. However, the patient failed to provide any expert testimony or report to support the allegations. The defendants were granted dismissal based on the plaintiff’s failure to provide such expert testimony. The court ruled the plaintiff’s theory was too simplistic and a layperson would not have sufficient knowledge to reach such a conclusion with appropriate justification. An appellate court affirmed the dismissal.
Background: In November 2017, a man underwent surgery for placement of a Nevro spinal cord stimulator. After the procedure, the surgeon tested the device and its parts, and everything appeared to be implanted correctly and working correctly. However, while still at the hospital, the patient sneezed or vomited and felt a “pop” in his neck. Subsequent imaging revealed that the spinal cord stimulator had moved. The patient underwent a second surgery three days later to reposition the device.
In 2019, the patient and his wife filed a medical malpractice action against the surgeon, alleging the initial surgery and implantation were performed negligently. The plaintiffs claimed that the movement of the stimulator could only have been caused by negligent surgery and a deviation from the applicable standard of care. The plaintiffs did not provide any expert medical testimony, instead alleging that the breach and injury were self-evident to a layperson and that a medical expert was unnecessary. Even after the litigation had commenced and the parties engaged in discovery, the plaintiffs did not secure any medical expert by the conclusion of discovery.
Before trial, the defendant filed a motion for summary judgment based on the plaintiffs’ failure to provide any medical expert. The defendants argued that such expert testimony was required and that the medical standards and alleged breach were not within the common knowledge of laypersons. The plaintiffs again claimed they were not required to provide a medical expert report or testimony because the malpractice was common knowledge of an average layperson.
The trial court granted the motion, noting that the standard does not require a medical expert “only if the matter is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even non-professional persons.” The plaintiffs had not satisfied this standard, and the trial court dismissed the defendant. The plaintiffs appealed, arguing it is self-evident that unsecured things move when they are not fully secured, and the surgeon thus erred in failing to fully secure the implant.
The appellate court upheld the trial court ruling and stated that the plaintiffs’ theory was too simplistic and not an accurate reflection of the neurosurgery procedure in the case. Furthermore, the plaintiffs admitted they did not understand the need for a second surgery until a medical professional explained it to them, which the court recognized would be the same for a jury. The appellate court affirmed the defendant’s dismissal.
What this means to you: Medical malpractice litigation often revolves around the reports and/or testimony from experts, and this case is no different. In fact, this case highlights just how important expert reports and testimony are: The case was dismissed based on the plaintiffs’ failure to provide any such expert support. A plaintiff must allege and provide multiple elements to support a malpractice cause of action, including the existence of a duty, a breach of that duty, damages, and causation.
But in this case, the defendants did not even need to substantively challenge any of these necessary elements because the patient did not retain a medical expert to support their claims. The patient effectively argued that it was obvious that a medical implant’s movement must have been caused by a breach of duty, thus an expert was not necessary to support the claims. This was a risky position for the patient to take, and the court recognized that it is a high standard for plaintiffs to satisfy. Given the complexity of modern medicine, it is difficult — albeit not impossible — to hypothesize a situation that is truly self-evident that a care provider acted negligently and caused harm. Surgical equipment left inside a patient during surgery and going undiscovered when the patient is closed is perhaps one such example where it seems obvious that a left-behind object could cause complications and fall below the applicable standard of care for surgeons. Even then, a patient would be well advised to secure a medical expert, likely a surgeon, to proffer such an opinion. Expert testimony also could have provided critical information about any possible problems these kinds of devices have caused other patients in the past, as well as the adequacy of the surgeon’s skill in performing the procedure.
The plaintiffs attempted to satisfy the high standard here, but the court disagreed as a matter of law. There was no dispute about the underlying facts at issue: Both sides agreed that imaging revealed the stimulator moved, and there was no dispute that the patient underwent another surgery to reposition the device. But what caused the device to move? Was it a unique or unexpected anatomical feature of the patient? Was it because the surgeon failed to secure the device in the first place? Or was it the patient’s fault because of some unorthodox movement that the surgeon warned the patient against? These multiple potential questions are examples of circumstances that the defendant could raise to undermine the patient’s conclusory allegation that it must have been wrongdoing by the surgeon that caused the movement and injury.
Moreover, the court emphasized an important point that care providers can use: The patient, a layperson, did not realize that a second surgery was necessary until a medical professional — an expert — explained it. A jury that is comprised of laypersons would need the same explanation, thereby justifying the need for an expert to support the plaintiffs’ case. Few cases are so simple as to be squarely within the comprehension of laypersons without the need for any expert opinion; a legal challenge to a patient’s claim that laypersons can readily understand the intricacies of medical procedures or treatments can be a useful tool for care providers in the rare instance that a patient fails to provide any expert testimony. More often, care providers will need to challenge the expert’s qualifications or testimony, or otherwise distinguish the expert’s opinions to defeat a malpractice claim. Such challenges are commonplace and another useful mechanism for care providers to succeed against malpractice claims.
Finally, this case also demonstrates the importance of informed consent, patient teaching, and staff education. Any time a medical device is implanted into a patient, the surgeon must provide information about the device both verbally and in writing. Most device manufacturers provide written educational materials as well as specific device information that are given to the patient and placed in their medical record. Instructions for products like the spinal cord stimulator often include restrictions on exercising that include no bending, lifting, twisting, or stretching for some time after the device is placed. Reimplantation due to device migration is a possible side effect. If this information was included in the informed consent, the case may not have gone forward. Staff should be informed that documenting their patient education in the immediate postoperative period can contribute to favorable litigation outcomes if matters later end up in court.
REFERENCE
- Decided Nov. 3, 2023, in the Superior Court of Pennsylvania, Case Number 3064 EDA 2022.
Medical malpractice litigation often revolves around the reports and/or testimony from experts, and this case is no different. In fact, this case highlights just how important expert reports and testimony are: The case was dismissed based on the plaintiffs’ failure to provide any such expert support.
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