Court: United States District Court for the Western District of Texas, El Paso DivisionJurisdiction: FederalCase Name: Petty v. United StatesCitation: 2019 U.S. Dist. LEXIS 165924
The plaintiff alleged that the attending doctors caused a uterine perforation when they performed a dilation and curettage procedure. The plaintiff retained an OB/GYN physician as her pathology expert. This expert opined on the standard of care for physicians during D&C procedures. However, the defendant argued that the expert was unqualified.
Facts
The plaintiff filed her original complaint alleging an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 2671, against the defendant. The defendant owns and operates, through an agency, the army hospital where the plaintiff received treatment. The plaintiff delivered a baby by Caesarean section at a civilian hospital. After a few days, she went back to the civilian hospital. The hospital then admitted her for fear of cellulitis and a post-surgical abscess. The plaintiff had material discharge from a part of the C-section surgical incision. The following day, physicians operated on the plaintiff and opened and drained the incision. The hospital then discharged her with a vacuum-assisted closure of her wound.
The plaintiff then transferred her treatment to the army hospital when she faced further complications. The attending doctors performed a dilation and curettage (D&C) procedure. The plaintiff alleged that the treating doctors caused a uterine perforation and failed to treat it during the procedure. As such, the plaintiff claimed that this failure caused physical and mental anguish. She was then forced to seek further treatment.
The Plaintiff’s Pathology Expert Witness
The pathology expert witness was a board-certified obstetrician and gynecologist who has an OB/GYN practice. The expert also served as a medical professor teaching resident physicians. He has undertaken several D&C operations and C-sections as well as hysterectomies. The pathology expert has also managed uterine perforation and other complications arising from D&C procedures. The plaintiff appointed him to present expert opinion on the applicable standard of care for physicians in D&C procedures.
The pathology expert witness offered his expert opinion that due care had not been taken. The expert based this opinion on the severity of the plaintiff’s injury to the right posterior uterine wall and to the right broad ligament. These injuries were reported in the pathology report. The report identified a clearly apparent penetration of the lower uterine segment and fundus. In the expert’s opinion, one of the sharp curettes used in the D&C process most likely caused the plaintiff’s wound, a perforated uterus. He explained that this is a known complication of the D&C protocol with increased risk in the postpartum patient. The pathology expert relied on inpatient and outpatient records of the army hospital. He also relied on the deposition testimony of the doctors who performed the procedure.
Arguments
The defendant filed a motion to exclude the pathology expert’s testimony. According to the defendant, the expert’s opinions were unreliable and based on insufficient evidence. Furthermore, the defendant claimed that the expert was not qualified to offer an expert opinion on pathology. The defendant also asserted that the expert was testifying as an expert in pathology when he was really offering his OB/GYN expertise in reading pathology reports.
Discussion
The court found the pathology expert witness to be qualified to testify in the case. The court also found that his testimony was relevant because the expert was using his specialized knowledge to explain issues that are not found in common knowledge. As such, the court believed the expert’s testimony would assist the trier of fact in understanding the evidence and determining the facts in issue in the case.
Ruling
The court denied the defendant’s motion to exclude the pathology’s expert testimony.
Key Takeaways for Experts
When testifying about the standard of care departure, make sure you have strong credentials and expertise in the subject matter. In this case, the defense argued that the OB/GYN physician was not a pathology expert. However, because of his specialized knowledge of D&C procedures, the court found him qualified. It’s important for medical experts to have the requisite experience treating patients that relates to the facts of the case. Having your expertise support your opinions helps build your testimony along with relying on medical records.
About the author
Wendy Ketner, M.D.
Dr. Wendy Ketner is a distinguished medical professional with a comprehensive background in surgery and medical research. Currently serving as the Senior Vice President of Medical Affairs at the Expert Institute, she plays a pivotal role in overseeing the organization's most important client relationships. Dr. Ketner's extensive surgical training was completed at Mount Sinai Beth Israel, where she gained hands-on experience in various general surgery procedures, including hernia repairs, cholecystectomies, appendectomies, mastectomies for breast cancer, breast reconstruction, surgical oncology, vascular surgery, and colorectal surgery. She also provided care in the surgical intensive care unit.
Her research interests have focused on post-mastectomy reconstruction and the surgical treatment of gastric cancer, including co-authoring a textbook chapter on the subject. Additionally, she has contributed to research on the percutaneous delivery of stem cells following myocardial infarction.
Dr. Ketner's educational background includes a Bachelor's degree from Yale University in Latin American Studies and a Doctor of Medicine (M.D.) from SUNY Downstate College of Medicine. Moreover, she is a member of the Board of Advisors for Opollo Technologies, a fintech healthcare AI company, contributing her medical expertise to enhance healthcare technology solutions. Her role at Expert Institute involves leveraging her medical knowledge to provide insights into legal cases, underscoring her unique blend of medical and legal acumen.
