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. 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.