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)