Court: Court of Appeal of California, Fourth Appellate District, Division One
Case Name: Belfiore-Braman v. Rotenberg
Citation: 2018 Cal. App. LEXIS 628
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.
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.
The appeal court affirmed the trial court’s judgment.