Medical Malpractice Case Dismissed Based on Lack of Expert Testimony

Earlier this month, an appellate court in Alaska heard a case brought by a patient against his doctor, alleging that the doctor’s failure to provide an acceptable level of medical care resulted in a permanent injury. In the case, Brandner v. Pease, the plaintiff was a patient who underwent open heart surgery that was performed by the defendants. Ultimately, the court determined that the plaintiff’s lack of expert testimony supporting his allegations was fatal to the claim’s viability, and the case was dismissed.

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The Facts at Trial

At trial, the court heard that the plaintiff went to the defendants for open heart surgery. While the plaintiff seemed to be recovering well immediately after the surgery, eventually he developed a series of long-term injuries that resulted in the plaintiff not being able to return to work. The plaintiff sued the doctors and anesthesiologist involved in his procedure.

As is required by statute in Alaska, the plaintiff submitted an affidavit from a medical expert, explaining that in the expert’s opinion, the medication used to anesthetize the plaintiff likely contributed to the complications. Additionally, the expert claimed that the plaintiff’s condition was likely worsened by the doctor’s difficulty in securing the plaintiff’s airway and the doctor’s failure to use a TEE probe in the procedure.

However, in a later deposition, the doctor the plaintiff relied on in his affidavit was discovered to not be qualified in the use of TEE probes, and, while the doctor was an anesthesiologist, he had not practiced cardiovascular anesthesiology since 2001. In the deposition, the doctor also categorized the level of care as “sub-optimal,” but he refused to state that the defendants’ conduct fell below the acceptable standard of care.

The defendants asked the court to disallow the expert’s testimony, based on the fact that he was not a certified physician in the field and the fact that, even if the court did consider the doctor’s opinion, he did not state that the defendant’s conduct fell below the acceptable standard of care. The court agreed and dismissed the plaintiff’s case.

Medical Malpractice Cases in New Mexico

Unlike Alaska, New Mexico does not require an expert affidavit prior to submitting a case for trial. However, expert selection in New Mexico medical malpractice cases is still a crucial issue because an expert will almost certainly be required at some point in the trial. Having an unqualified expert, or an expert who is not specifically qualified in the medical field at issue, can result in the dismissal of an otherwise meritorious case.

Have You Been the Victim of Medical Malpractice?

If you or a loved one has recently been the victim of what you believe to be medical malpractice in New Mexico, you may be entitled to monetary compensation. Keep in mind, however, that the doctors and hospitals named in medical malpractice cases are usually represented by insurance companies who retain specialized counsel to defend their clients. Therefore, you should be sure you have someone on your side to stick up for your rights. The skilled advocates at the Fine Law Firm understand what it means to be a victim of medical malpractice, and they tailor their representation according to each client’s needs. Call 505-889-FINE to set up a free consultation with an attorney today.

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National Highway Traffic Safety Administration Announces New Technology, Soon to Be Required on All Vehicles, New Mexico Personal Injury Lawyer Blog, November 10, 2015.