General Surgery Expert Found Unqualified to Opine on Pediatric Surgery Issues

Wendy Ketner, M.D.

Written by Wendy Ketner, M.D.

- Updated onOctober 25, 2023

Court: United States District Court for the District of Puerto Rico
: Federal
Case Name
: Munos-Vargas v. Laguer
: 2017 U.S. Dist. LEXIS 46562


The plaintiffs brought this motion of negligence against the defendant physician and his hospital of employment on the grounds that the defendants failed to properly diagnose their infant’s congenital conditions. The infant suffered a tethered cord and dermal sinus tract which caused the infant to suffer two bouts of meningitis, multiple infections in his back, an unnecessary surgical procedure, and extended hospitalizations during the first year of his life. The defendant hospital hired a general surgery expert witness to defend the performing surgeon.

The General Surgery Expert

The defendant general surgery expert earned his bachelor’s degree from McGill University and his medical degree in Salamanca, Spain. He completed his surgery residency at a veterans hospital in Puerto Rico. The general surgery expert studied in the areas of laparo-endoscopic surgery for his post-graduation, along with a refresher course in colon and rectal surgery. The expert’s primary practice area was gastro-intestinal conditions. He was not a board-certified surgeon, nor was he a pediatric surgeon.


The court noted that even though Puerto Rico law does not require an expert to specialize in the area he opines on, the expert, through his own admission was not in the practice of treating minors and had never performed a surgery like the one was performed in the present case.

The expert himself testified that he did not have enough knowledge of the specific medical issues in question. Moreover, he admitted that if a similar case would have been referred to him, he would have further referred it to a pediatric surgeon. These admissions led the court to find that the defendant’s general surgeon was not qualified enough to be an expert in this case to assist the trier of fact.

The court further stated that the general surgery expert did not find out the exact nature of the allegations, noting that trial judges may evaluate the data offered to support an expert’s bottom-line opinions to determine if that data provides adequate support to mark the expert’s testimony as reliable, citing Ruiz-Troche v. Pepsi-Cola of P.R. Bottling Co., 161 F.3d at 81. The court stated that the expert had only examined the timeline of events, a recital of the surgeon’s actions, and arrived at the meager conclusion that the surgeon had not acted negligently. This cursory analysis, the court said, could not be considered a reliable opinion, as the expert failed to cite any standard of care or check whether the surgeon’s actions were up to standard. The court cited Daubert, 43 F.3d at 1319 – “We’ve been presented with only the expert’s qualifications, their conclusions, and their assurances of reliability. Under Daubert, that’s not enough” to support his position.


The plaintiffs’ motion was granted, and the defendant was precluded from presenting the expert’s testimony or his report as an expert witness in this case.

To pass the qualification test laid down in Daubert, an expert must meet a twofold standard – they must have appropriate credentials and an appropriate foundation for the opinion at issue.

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