General Surgery Expert Found Unqualified to Opine on Pediatric Surgery Issues

ByWendy Ketner, M.D.


Updated on September 12, 2019

Court: United States District Court for the District of Puerto RicoJurisdiction: FederalCase Name: Munos-Vargas v. LaguerCitation: 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.

About the author

Wendy Ketner, M.D.

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.

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