“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
An industrial accident cost Corey Cochran three fingertips. Emergency responders rushed him to a nearby hospital, where he received emergency treatment from Dr. Robert Howell. Dr. Howell successfully reattached the man’s severed fingertips. Or so it seemed.
After surgery, hospital staff examined the patient’s fingerprints – and claimed Dr. Howell reattached the severed fingertips to the “wrong” fingers. What did that look like? Unfortunately, we couldn’t find any pictures.
Cochran sued his doctor for malpractice. His legal counsel contacted expert witness Dr. Michael Morris, a hand surgeon based in Washington, D.C., to act as an expert witness. In his testimony, Dr. Morris stated that Dr. Howell violated the standard of care.
Dr. Howell also lawyered up.
Before diving in, let’s briefly review our cast – because the stage is packed.
Dr. Robert Howell (hand surgeon) is the defendant. His former patient (Corey Cochran) is suing him for malpractice. Attorney D. Hanson leads Dr. Howell’s defense.
Attorney Charles Brant leads the plaintiff’s team. Dr. Michael Morris (also a hand surgeon) serves as the expert witness.
The defense opened with the following: Is Dr. Morris even qualified to serve as an expert witness in this case?
The defense did not argue that Dr. Morris was a bad surgeon. They did not argue that he lacked experience performing most hand surgeries. They argued he lacked sufficient experience dealing with fingertip replantations.
“The question in this case is whether Dr. Morris is qualified under Georgia’s law, under Rule 702, to testify as an expert, whether he has the requisite experience,” Hanson argued.
Let’s pause for a moment and dig into Rule 702, because it is the linchpin in Hanson’s argument.
Rule 702 declares the expert’s testimony must meet the following criteria…
- (1) The testimony is based upon sufficient facts or data;
- (2) The testimony is the product of reliable principles and methods; and
- (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.
Hanson claimed the expert’s testimony did not satisfy the qualities described in the third bullet.
“He [the expert witness] is undoubtedly qualified as a hand surgeon. He is undoubtedly qualified to talk about if arteries had been misattached or the nerves had been misattached in the fingertips, but he is not qualified to talk about the specific thing that he criticizes, i.e. ‘which finger tip goes where.’”
Dr. Morris acknowledged he had not performed any multidigit finger replantations in the five years preceding Howell’s alleged medical malpractice involving Cochran’s surgery. Hanson then pointed out that the plaintiff’s expert had done “maybe four multidigit finger replantations throughout his entire career.”
The case made its way to the Georgia Court of Appeals, where the defense’s argument gave the court pause. Does Dr. Morris really need to be a seasoned expert in fingertip replantation to opine that attaching the wrong fingertip to the wrong finger violates the standard of care? Does anyone?
The defense’s argument: Yes. Yes, he does.
“The question is, ‘How do you make that determination intraoperatively?’” Hanson said. “‘What do you do to figure out which tip goes where, because all you have are just the ends.’”
The defense argued this was a challenge specific to multidigit replantation, which was not in the expert witness’ wheelhouse.
“All of this goes back to the fundamental question, which is, ‘how is this surgeon, Dr. Howell, supposed to make this determination intraoperatively when he is trying to replant the digits,” Hanson argued. “The bottom line here is that the expert who is critical of him hasn’t made that determination intraoperatively. He does not know what the standard is for making that determination intraoperatively, and so he’s not qualified under Georgia law to criticize Dr. Howell for his decision intraoperatively to determine which digit it is that goes where.”
Charles Brant (the plaintiff’s attorney) declared their expert witness was qualified and that “the expert did not need to conduct the same multidigit replantation surgery to be qualified as an expert in the case.”
“The record is very clear that you don’t have to do exactly what you’re criticizing,” Brant argued. “You have to have familiarization. You have to have knowledge about what it is that an individual is doing.”
He added that the expert witness described how a surgeon might determine where to reattach the severed fingertips.
“He actually did a scenario where he talked about how you view the fingers in preoperation to make sure you’re attaching them to the correct digits,” Brant replied. “He was asked that question by opposing counsel, and he was able to explain what he had done in previous situations differently and what he would have done differently in this case.”
Many of you might be wondering: Were the fingertips marked? According to the plaintiff’s attorney, yes.
[Appellee attorney] Charles Brant argued Cochran’s amputated fingertips had been marked by nurses “under [Howell’s] control and direction” to indicate which digit they should have been reattached to, information he said opposing counsel “left out.”
“The fingers were marked pre-operation,” Brant argued. “They were incorrectly put on the plaintiff’s hand.”
The defense argued that the purpose of the markings was unclear.
“When asked in his deposition, ‘what the markings were’ [and] ‘where the markings came from,’ Dr. Howell responded that he didn’t know and that he thought maybe the nurses had marked them so that they can keep the fingers straight.”
As we stated before, the case has yet to meet its conclusion. We’ll supply an update once we learn of the outcome.
There are several questions in play: How do you determine if an individual is qualified to serve as an expert witness? How many procedures must a doctor perform in his career to qualify as an expert? What if he has performed many related procedures but none like it recently?
Until either side locks down the answers, their back-and-forth game will continue.
This case has many moving parts. Let’s simplify it before we draw the curtain.
Dr. Howell successfully reattached his injured patient’s severed fingertips but allegedly put the wrong fingertips on the wrong fingers. Another hand surgeon, the plaintiff’s expert witness, testified that such an act constituted malpractice. The defense argued that the expert witness was not qualified to make that call because he had not performed a multidigit replantation for several years.
But even a layperson could conclude such an outcome (wrong fingertips, wrong fingers) is not ideal for the patient. Is it malpractice, though? What do you think? Let us know your thoughts.
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Did the functionality of the digits change as a result of the alteration of the tip placement . If not: no malpractice!!
This case is nonsense. Hand surgeons frequently reattach fingers in different positions INTENTIONALLY to provide for a maximally functional result. I’d be happy to serve as an additional expert for them if need be.
I agree. If the patient claim any significant “loss”, this should have been dismissed through summary judgement…
I haven’t done one since i was a resident, so my opinion won’t count under Georgia law. However, i have three thoughts:
-If defendants main argument is that plaintiff expert isn’t qualified, why doesn’t plaintiff just call their bluff and get a new expert who does the procedure?
-Meanwhile, defendant should challenge the plaintiff to find another expert. If what he did was truly malpractice they should easily find another expert. They should also be arguing that it is irrelevant upon which finger the fingertips are put. After finger replants, digits are often so shortened, scarred, or distorted that putting them on the wrong finger would be irrelevant to cosmesis or function. To wit, i recall replanting a middle finger onto an index finger because the amputated index finger was too damaged to use. Perhaps the surgeon may have had reason for doing what he did, eg one stump needed a long tip, etc.
It is also important that an expert do the exact procedure for which they are testifying. This so-called expert should be dismissed by the court. There are too many nuances in any surgical procedure for someone only remotely associated with the procedure to offer an opinion. After all, they are called upon for their “EXPERT opinion”, and if they don’t do the procedure frequently and do it well, then they are not an expert. Geez, even just doing it regularly doesn’t make them an expert. Every plastic surgeon regularly does breast augmentation, but that doesn’t make them all experts. The word e-x-p-e-r-t is the critical thing in malpractice cases. And that should be the case for both the defense and the plaintiff.
I’m curious as to what others think who have more experience in this area.
One of the core issues in tort cases is that there has to be a tort. In other words the plaintiff has to have some damage or injury. Aside from the plaintiff claiming that the finger tips were on the wrong fingers, which would be difficult for anyone to determine in these traumatic injuries, what is the injury here? That is never stated. Does the plaintiff have some dysfunction as a result of the fingertips being attached differently? Under the circumstances this patient is lucky that he still has any finger tips. He would have otherwise been left with stumps, if the tissue were too mangled to reattach. The plaintiff should be grateful that he has fingertips at all. But under the circumstances is there a tort just because the finger tips were not attached to the correct fingers. Moreover, other than by finger printing how would the plaintiff or anyone else know that the wrong finger tips were put on the wrong fingers. How does anyone tell in the event of a traumatic event such as this? How would one have known by unknown marks put on the fingertips by someone other than the surgeon? Would the markings of a lay person at the scene have even been reliable if that was where the marks were placed?
Should the defendant have obtained his own expert hand surgeon skilled in multi digit reattachment, to opine? Yes. This should have been done so that the defense team had not only the defendant’s testimony but that of an additional expert hand surgeon as an independent source to impugn the plaintiff’s expert witness.
In a no fault scenario, what would the payout be, assuming that this was independent of fault? Would it not be based on what the plaintiff could or could not do? The facts of the case do not state that. But it would seem likely given the facts in hand (pun intended) that he has no significant injury given the nature of the underlying trauma. Doing the right thing, preserving a person’s finger tips after a terrible trauma, is somehow the wrong thing because a lawyer cooks up a malpractice case. This is why people do not want to go into medicine, and take on cases like this.
This case gets under my skin! As a Plastc surgeon with fellowship training in hand surgery and microsurgery and having done replantation of amputated fingers, hands, forearms and transfer of toes to hands I can say that I was taught and practiced (over 20 years) a strategy for replants. Match the best part to the best recipient site. Function is more important than cosmesis. Just because someone put a mark on a digit doesn’t mean they were accurate in placing said marks. Intraoperative assessment of each digit and recipient would determine final placement. I have seen a clean skin laceration with avulsion of artery intima lining. Not a good finding and poor prognosis. Microsurgery has gotten very good over my lifetime but there is never a guarantee of success. Without more information I would question the motive for the case.
What are the functional damages? How many were reimplanted, total? Seems like if they all necrosed, there would have been no suit. What are the damages…?
sue the plaintiff, his expert, and his attorney. after all, it’s “just the tip…”