Plaintiff filed a medical malpractice lawsuit against defendant. The defendant hired an infectious disease expert witness to provide testimony. Plaintiff filed a motion to exclude this witness based on qualification. The court denied the motion.
Facts: This case (Joe-Cruz v. United States of America – United States District Court – District of Mexico March 14th, 2018) involves an alleged medical malpractice claim. The plaintiff (“Joe-Cruz”) went to Acoma-Canoncito-Laguna Service Unit in Cibola County, New Mexico, for medical treatment. A few days after being treated, she went to the emergency room at Presbyterian hospital in Albuquerque, New Mexico and was is acute respiratory failure and fulminant septic shock. Joe-Cruz subsequently filed this lawsuit. The defendant hired infectious disease expert witness Dr. George A. Diaz, which Joe-Cruz objects, based on qualifications.
Discussion: Joe-Cruz alleges that Dr. Diaz is not qualified to provide expert witness testimony in this case because he is an infectious disease expert, not one in emergency medicine. Dr. Diaz is the Section Chief for Infectious Diseases at Providence Regional Medical Center Everett and owns Everett Infectious Diseases, PLLC. He is also a lecturer at the University of Washington. In addition, he completed a fellowship in infectious diseases and has worked in emergency room settings.
In his expert report, Dr. Diaz’s opines that the defendant did not breach the duty of care to Joe-Cruz because, 1) She did not take a recommended flu shot in 2024, which may have prevented the illness; 2) based on her symptoms, treatment for bronchitis was reasonable; 3) the influenza test given to Joe-Cruz came back negative; 4) she had been experiencing symptoms for more than 48 hours before she saw the medical provider and after that time, Tamilflu would not have been effective; 5) Tamiflu would have shortened her stay at the hospital by a few days; and 6) the risk factors published due to complications of influenza are based on weak evidence.
The plaintiff states that these opinions concern emergency medicine and that Dr. Diaz is not one. The court disagrees, stating that the defendant has shown that Dr. Diaz is qualified by training, education, and experience to opine on whether the defendant’s treatment to Joe-Cruz meets the standard of care. The fact that Dr. Diaz is not an emergency room physician goes to the weight of the evidence and not the admissibility.
Conclusion: The motion to exclude the expert witness testimony of Dr. George A. Diaz is denied.