Neurosurgeon’s Findings Deemed Duplicative to Orthopedic Surgery Expert’s Testimony in Hip Surgery Case

ByWendy Ketner, M.D.

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Updated onOctober 22, 2020

Neurosurgeon’s Findings Deemed Duplicative to Orthopedic Surgery Expert’s Testimony in Hip Surgery Case

Court: Court of Appeal of California, Fourth Appellate District, Division One
Jurisdiction
: Federal
Case Name
: Belfiore-Braman v. Rotenberg
Citation
: 2018 Cal. App. LEXIS 628

Facts

The plaintiff and her husband filed a medical malpractice lawsuit against an orthopedic surgeon following complications after a hip replacement surgery. After a hearing under Evidence Code 1, section 402, the court excluded certain medical opinion testimony that the plaintiff offered on issues of causation and damage, from her recently designated but non retained neurosurgery expert witness. The trial court ruled that the required evidence would be unduly duplicative within the context of Section 723 of the Evidence Code, since the plaintiff had also retained an orthopedic surgery expert. Nevertheless, the court allowed the unretained expert to testify about his findings from an MRI analysis he carried out and what the results of the test told him about the plaintiff’s condition. Ultimately, the jury found that the defendant surgeon was not negligent. The plaintiffs then appealed this verdict, claiming the trial court abused its discretion in precluding the unretained expert’s offered testimony on causation and damage.

The Orthopedic Surgery Expert

The orthopedic surgery expert witness was a board-certified orthopedic surgeon. He opined that the defendant did not comply with the applicable standard of care, in particular, because the surgery resulted in nerve damage and a length discrepancy in the plaintiff’s limbs. Concerning the position of the patient’s hip and knee during hip replacement surgery, the expert explained that it may affect the sciatic nerve and that the retractors used may stretch and bruise the nerve, resulting in sciatic nerve injury. He also reviewed the defendant’s operative report and was unable to determine whether the plaintiff’s position during surgery had caused her injury.

The expert inferred from the evidence that the nerve had been overextended and that this kind of damage did not arise naturally. He claimed that the plaintiff’s injury was a result of the disparity in the length of the leg (one centimeter) and how other protocols were used during surgery.

Discussion

The plaintiff argued that the orthopedic surgery expert’s testimony was not enough to prove all aspects of causation and the unretained expert, a neurosurgeon, would provide evidence about issues related to nerve damage. The court found several problems with this argument. First, the neurosurgeon would have had to deal with different ways of violating the applicable standard of care, an issue that was never brought in this appeal. Next, the court noted the orthopedic surgeon had already discussed whether the nerve had been stretched too much, such as through positioning during surgery or through the use of retractors. The unretained expert’s testimony was roughly equivalent to considerations about the excessive use of force, and thus, it would have been cumulative rather than new.

Held

The appeal court affirmed the trial court’s judgment.

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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