Hernia Expert Challenged for Lack of Recent Experience with Procedure and Surgical Equipment

Wendy Ketner, M.D.

Written by
— Updated on June 22, 2021

Hernia Expert Challenged for Lack of Recent Experience with Procedure and Surgical Equipment

Court: Supreme Court of Georgia
Jurisdiction: Federal
Case Name: Dubois v. Brantley
Citation: 2015 Ga. LEXIS 539

The plaintiff alleges the defendant negligently operated on his hernia. The plaintiff’s hernia expert witness agrees the appropriate standard of care was not met. But the defendant says the expert is not qualified to give this opinion. They argue the expert has not performed this type of procedure in over five years. Thus, according to the defendant, the expert cannot be an authority here.

The court rules otherwise. It determines the expert is sufficiently experienced with the procedure in question. Further, the court points out the expert employs the same surgical devices in his regular work. Here, the expert’s qualifications in similar procedures and tools satisfy the court’s review.

Facts

The plaintiff suffered from an umbilical hernia. As a result, doctors suggested a laparoscopic procedure to correct it. The defendant performed the laparoscopic procedure and discharged the plaintiff within hours. A few days later, however, the plaintiff returned to the hospital with a fever and other symptoms. Doctors diagnosed him with acute pancreatitis. Exploratory laparotomy showed a punctured pancreas. Hospital staff determined this was likely the cause of pancreatitis. After this, the plaintiff suffered respiratory failure, acute renal failure, and sepsis. He required another surgery. The plaintiff survived after being in a coma for a few days.

The plaintiff filed a lawsuit against the doctor and the hospital. The suit alleged that the defendant doctor negligently punctured the pancreas with a trocar. A trocar is a surgical instrument used to withdraw fluid from a body cavity. The plaintiff retained a hernia expert witness to help support his case.

The Plaintiff’s Hernia Expert Witness

The plaintiff retained a hernia expert witness to opine on the defendant’s allegedly negligent use of the trocar. The expert was a general surgeon. His work regularly involved trocars for a number of laparoscopic abdominal procedures. Additionally, the expert had experience conducting laparoscopic operations to treat umbilical hernias. However, he testified that he no longer performed this particular laparoscopic procedure. The expert explained he had begun treating umbilical hernias through open surgery instead. At deposition, he admitted that in the last five years he had done no more than one laparoscopic procedure for an umbilical hernia. He also opined on the applicable standard of care when using a trocar. The expert explained a trocar should be used to puncture the pancreas only when it is dislocated from its abdominal position. This criterion, according to his opinion, was not apparent in the plaintiff’s case.

The defendant moved to exclude the hernia expert’s opinion. They claimed the expert was not qualified to provide expert testimony. In particular, the defendant pointed out the expert had not routinely performed the procedure at issue in the past five years. According to the defendant, this meant the expert’s opinion on the standard of care could not be reasonable.

Discussion

The court noted that the expert had an appropriate level of knowledge on the procedure to opine on the defendant’s alleged negligence. The court further noted that the expert’s experience performing this procedure gave him authority to conclude the defendant inappropriately handled the trocar. It also explained the expert routinely carried out various other laparoscopic procedures in the abdomen. The procedures included those requiring trocars. The court stated that the defendant failed to demonstrate that the expert was unfamiliar with the trocar. Further, the defendant did not differentiate how the trocar was different from the tools and techniques the expert used in his own practice.

Ruling

The court denied the defendant’s motion to exclude the plaintiff’s hernia expert witness’s testimony.

Key Takeaways for Experts

This case demonstrates how the opposition may try to argue that an expert doesn’t have the correct qualifications. As an expert, you’re the best judge of your familiarity with a case topic. Make sure each consulting role you take is a good fit and your experience can withstand a similar challenge.

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