Expert Witness Blog
The defendant challenged the standard of care and causation experts in this medical malpractice case. The court denied the motion to exclude the testimony of both witnesses.
Facts: In this case (N.O. a minor et al v. Alembik et al – United States District Court – Eastern District of Virginia – January 4th, 2016) the plaintiff (Christine Orwig), the mother of the injured minor, sued the defendant, her doctor (Dr. Mark Alembik) for malpractice. Orwig stated that in September 2011, while 28 weeks pregnant, her membranes ruptured prematurely, causing her amniotic fluid to leak. After Alembik put her on bed rest (and deciding not to deliver the baby). After Orwig subsequently showed signs of chorioamniotitus (a bacterial infection in the fetal membranes), Alembik decided to induce labor vaginally instead of via cesarean section. Orwig contends that delivering via cesarean section put her baby at risk of more infection. After delivery, the baby was diagnosed with meningitis and sepsis and, subsequently hydrocephalus. Orwig sued for negligence and called two obstetrics & gynecology (OB/GYN) expert witnesses
to assist in her case.
Orwig sued Alembik for negligence on three issues: 1) for failing to prescribe medication to guard against causes of chorioamniotitus, 2) failing to monitor her condition while knowing that she may have chorioamniotitus, and 3) failing to perform a cesarean delivery and choosing to deliver vaginally.
Discussion: In order to assist in proving her case, Orwig called two expert witness. The first, Dr. Douglas Phillips, was to testify on the standard of care related to this case. The second, Dr. Craig Cohen, was to testify as a causation expert.
First, the defendants argue that Dr. Phllips is not qualified as an expert under Virginia’s Medical Malpractice Act (VMMA). This act has two major requirements for those who seek to testify regarding the applicable standard of care. There is a knowledge requirement, which leans towards the experts knowledge of the specific procedure at issue in the case. Second, there is an “active clinical practice” requirement in which the proposed expert must have performed the procedure within one year of the negligent act at issue in this case.
The defendants argue that Dr. Phillips does not satisfy the “active clinical aspect” of the VMMA. They point to three reasons why he shouldn’t qualify: 1) he teaches and consults in the practice of deliveries, 2) he has not performed any vaginal deliveries since 2004, and 3) has not handled the management of a patient diagnosed with chorioamnionitis within the timeframe relevant in this case. The court opined that the defendant misread the relevant case law on the issue and that courts should take a broader approach on qualifications. Dr. Phillips meets the standards to qualify as a standard of care witness.
The defendants also challenge the expert witness testimony of Dr. Craig Cohen. They first argue that Dr. Cohen’s report only offers one conclusory line on the administration of Gentamicin, which is in violation of Rule 26 of the Federal Rule of Civil Procedure. In addition, they state that Dr. Cohen lacks enough knowledge of Gentamicin in order to testify.
The court opined that Dr. Cohen discloses sufficient support for his conclusions. He cites the available medical records, the testimony of Ms. Orwig, his training, and the relevant medical literature. Using this evidence, his conclusions and theories are clear. In addition, the court ruled that Dr. Cohen easily qualifies as an expert witness in this case, despite the fact that he explained that he would have to “look up” certain answers to the plaintiff’s questions at deposition.
Held: The motions to preclude the testimony of Drs. Phillips and Cohen is denied.