Most parents have uttered the phrase “Because I Said So”. You know precisely what it means. You know why you said it. And, on occasion, your offspring will also know what it means.
In the medico-legal domain, experts are generally needed to make the case to the jury. They need to explain why the defendant doctor violated the standard of care; and how that violation caused damages. Many times, that opinion is supported by years of experience, the medical literature, and more. But, sometimes, the expert’s opinion propelling a meritless case boils down to ““Because I Said So”.
New Jersey just said enough.
New Jersey concluded an opinion needs to be supported by standards, data, or more.
A woman had surgery to remove her right ovary. Post-op, it was discovered her right ureter was damaged. The ureter was repaired with a second operation.
I’m certain that is not the first time in the history of medicine a ureter has been injured during a gynecologic procedure.
The patient and her husband sued the doctor and the hospital. The expert opined the doctor deviated from the standard of care for gynecological surgery by failing to diagnose the ureteral injury which occurred during the removal of the ovary.
The Superior Court of New Jersey, Law Division, Camden County, barred the couple’s expert’s report and granted summary judgment in favor of the doctor and hospital. The trial court found that (1) the expert never provided an opinion as to how the injury occurred, and merely stated that a surgeon needs to detect a ureteral injury; (2) the expert did not identify what method of detection is required by the standard of care or if any method was performed; and (3) the expert failed to provide standards against which to measure the woman’s bleeding.
No expert. No case. Doctor and hospital won at summary judgment.
The plaintiff appealed the case. Again, the doctor and the hospital won.
The appellate court noted experts must identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. Expert opinions must be grounded in facts or data derived from (1) the expert’s personal observations, (2) evidence admitted at the trial, or (3) data relied upon by the expert that is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.
The court noted that the expert cited no standards, guidelines, or protocols governing the procedure the doctor performed on the woman or the standard of care he should have employed. The expert did not explain how the ureter injury occurred or describe the method the doctor should have used to prevent or detect the injury. Regarding the woman’s bleeding, the expert provided no reference point regarding a normal amount of bleeding that could be expected during surgery. Without such a reference point, the expert’s conclusion that the woman suffered excessive blood loss was unsupported. Finally, the expert acknowledged that an injury to the ureter was a recognized risk of the procedure. However, the expert failed to explain any causal connection between a deviation from the standard of care and the woman’s injury.
So there you have it. “Because I Said So” doesn’t always work in the courtroom. New Jersey Appellate Court just said so.
Dielmo v. Ances, 2015 WL 7199355 (N.J.Super.A.D., November 17, 2015)
Maybe all med mal cases should request a change of venue…
Well, all that don’t happen in New Jersey, anyway.
It is unfathomable that a defense lawyer would not challenge the statements of an “expert” witness without challenging his basis for conclusion. As a layman, even I know that an expert must give a valid basis for his/her conclusions. New Jersey shouldn’t be the only state that says “Because I said so” isn’t a factual basis for conclusions.
This case should have happened in every case like this in every state for the past 50 years. If this is the first precedent set in the legal community, shame on them!
Had the plaintiff’s attorney properly prepared their defense witness to produce documents that supported his opinion this case would have gone completely the other way.
The issue of bleeding was not described in enough detail to even comment on.
However the issue of ureteral injury is something that deserves comment. Having been an observer of these sorts of cases for years on the big screen (laparoscopic tv in our operating rooms), there are a few comments that would be appropriate. The ureter usually lies below the “surgical plane” in most patients. Therefore in the case of routine ovarian surgery the ureter is not in the way. The laparoscopic instruments and their end points need to be kept under observation as to where they are resting, or where they are located to make sure that they do not damage tissue below the surgical plane. However, in non routine cases, where adhesions occur, the ureter can be pulled up into the surgical plane of the ovary and careful observation and dissection is required. In such cases it is not uncommon for the OB/GYN to summon a urologist (or plan to have a urologist available) to insert prior to surgery ureteral stents. These act as guides as what the actual course of the ureter is, when adhesions distort normal anatomy, making the normal appearance and location difficult to determine. Additionally I have seen reusable laparoscopic instruments cause damage to tissue because some if not many hospitals do not have the equipment necessary to test their electrical integrity between cases. Insulation on reusable instruments can be damaged in ways that are not clearly visible on inspection and yet allow for stray cautery current to occur, damaging tissue along the path of the instrument, not just at the tip. The tissue damage that results can be diffuse, and difficult to detect at the time of surgery. I have also seen suture material put through a ureter when a needle strayed below the surgical plane and was not clearly visualized. There are any number of misadventures that occur. They require vigilance on the part of the operating surgeon, help from the operating room staff, and the anesthesia personnel such that, if they see something, say something.
An extra few minutes in the operating room checking out a momentary spurt of bleeding seen by one member of the operating team, but not by others, can save the patient a great deal of pain, discomfort, and reoperation, while saving the OR team from a malpractice case. Ditto for other problems seen on the laparoscopic TV, and why it takes many eyes and hands to obtain excellent results.