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Connecting the Dots: Prep The Experts

 

It is important to prepare experts for anything they may encounter on the stand. In Sampson v. Surgery Center of Peoria, the Supreme Court discussed an issue regarding testimony from an expert witness who testified in a medical malpractice case.i

This case involves the tragic death of a four-year-old who was released from outpatient care by the defendant sixty-one minutes after routine tonsil surgery.ii Once released, his mother brought him home and put him to bed. Two hours later, she found him non-responsive. Plaintiff filed suit for wrongful death against the surgical center for discharging him too soon after the surgery.iii

In Arizona medical malpractice cases, causation must be established by competent expert testimony, and the narrow exception is a jury may infer such causation if malpractice is “readily apparent.”iv Plaintiff hired an expert witness, Dr. Greenberg, who opined the defendant fell below the requisite standard of care.v

However, Dr. Greenberg was not clear about the proper standard of care, providing a range from one hour of post-operative observation, which the surgical center satisfied, to up to three hours, which it did not. More significantly, Dr. Greenberg did not opine that insufficient observation was the probable proximate cause of the child’s death. Rather, he stated that greater observation “could have” allowed surgery center personnel to resuscitate the child.vi Thus, the Supreme Court noted, plaintiff’s expert did not connect the dots regarding causation.vii

The Arizona Supreme Court expressly rejected the argument that by discharging the child before three hours, the jury could infer causation between his death and being released too soon.viii Instead, the Court concluded lay jurors are not competent to determine (1) that the child would have exhibited symptoms of distress during those three hours, (2) what those symptoms would have been, (3) what a reasonable schedule of observation in such a center would have been, (4) whether defendant would or should have noticed the child’s distress had it observed that schedule, and (5) if it had noted distress, what could have been done in a timely manner to save him. As a result, plaintiff did not establish the failure to observe the child for a longer period caused his death by starting a natural and continuous sequence of events, unbroken by any intervening causes.ix

In medical malpractice cases, ensure defense counsel is not only prepared to cross examine plaintiff’s expert regarding the standard of care but is also prepared to address causation. Here, the expert may not have been as prepared as well as he could have been. Every word uttered on the stand counts, and in the case discussed above, answers may have changed the course of the case overall.

 

 

i Sampson v. Surgery Center of Peoria, CV-20-0024-PR, slip op. (Jul. 30, 2021).

ii Sampson, CV-20-0024-PR.

iii Id.

iv Seisinger v. Siebel, 220 Ariz. 85, 94 (2009).

v Sampson, CV-20-0024-PR.

vi Sampson, CV-20-0024-PR, at 3.

vii Sampson, CV-20-0024-PR.

viii Sampson, CV-20-0024-PR.

ix Id.

 

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