Health care providers are required to meet the “standard of care” when treating patients and/or residents. So what exactly is the standard of care? Certainly, it is common knowledge that adverse outcomes alone do not equate to negligence. Nevertheless, the vague guidance in the laws of each jurisdiction hardly provide any “black line” guidance as to what a plaintiff must establish to present prima facie evidence of medical malpractice or nursing home negligence. On the other hand, all jurisdictions require expert testimony setting forth the basis for which there was a breach of the standard of care, and that said breach was the proximate result of the injury alleged.
Given the number of lawsuits that are filed each year, one could logically surmise that finding an expert to opine that a health care provider “should have” treated a patient or resident “better” is not a difficult endeavor. That being said, hindsight is 20/20. Moreover, the adverse outcomes can and do occur despite the best practical medical care available. In fact, the Federal Code of Regulations and all related state specific codes and statutes recognize this logic-based rule of thumb. Regardless, in defending medical negligence cases, the health care providers are always concerned that the prospective jurors will be substantially prejudiced for the patient when learning of the pain and suffering that will necessarily arise when the disease process becomes terminal. This prejudice can be strong enough to overcome the legal requisites the fact finders are instructed to follow when considering expert testimony on the ultimate issue. Two recent cases offer some reassuring guidance that the courts are willing to hold the plaintiff’s to their evidentiary burden.
Specifically, in Chaskes D.O., et. al v. Guittierez1 and Negron v. St. Barnabas Nursing Home2, the appellate divisions of both Florida and New York demonstrated the willingness of the courts to dispose of medical negligence cases where the plaintiffs’ experts could not meet the evidentiary burden relative to implicating liability. The remainder of this article attempts to take a closer look at the facts of these cases, the opinions of the experts, and the results achieved by the health care providers.
In Chaskes, the personal representative of the estate of a nursing home resident filed suit against the resident’s treating physician, nurse practitioner, and nursing home. The family contended that each provider was responsible for failing to adhere to the best practices in treating what ultimately developed into a stage IV pressure ulcer. Namely, the plaintiffs presented testimony from two experts: a nurse practitioner and/or plastic surgeon. In essence, the plastic surgeon testified that the manner in which a debridement was performed was not the “best practice” and that an alternative practice would have presented the “best chance for healing”. Further, both experts testified that failing to implement the proper protocol for the wound resulted in a subsequent infection and deterioration that ultimately resulted in the resident’s decline and death.
At trial, the defendants moved for a directed verdict. The crux of the motion cited to the trial testimony and concessions of the estate’s surgeon/expert during cross examination. In part, the surgeon was unable to state with certainty whether the pressure ulcer at issue would have progressed differently in the long run had the defendants performed the debridement in a different way. The lower court denied the motion and the jury rendered a verdict in favor of the estate as follows: 65% to the doctor, 25% to the nurse practitioner, and 10% to then nursing home.
On appeal, the third DCA of Florida reversed the jury verdict finding that the directed verdict argued by the defense should have been granted. Significantly, the Court held that the estate failed to meet the “more likely than not” standard of causation, relying on two long-standing Florida cases standing for the proposition that Florida Courts impose this burden unlike other jurisdictions that permit recovery for “the loss of any chance of recovery”. The reversal was a three-fold win for the defendants. In other words, in holding that the physician expert did not establish causation, the nurse practitioner and nursing home could likewise not be held responsible as the latter parties were acting in accord with the judgment and orders of the physician.
The lesson to be learned in Chaskes is perhaps that the correct questions on cross examination of an expert can, in some cases, take the question of liability away from the jury. Of course, the reality is, as seen in this case, the courts may be more likely to hold the plaintiffs to this burden. By doing so, it removes the case from the sympathetic juror who is often unable to appreciate that a resident’s decline is the result of the natural progression of certain illnesses and not necessarily the result of negligence.
In Negron v. St. Barnabas Nursing Home, an appellate court in New York dismissed a claim for nursing home negligence before it could be heard by the jury. Similar to the Chaskes case, the nursing home resident could not present expert testimony substantiating mere conclusory allegations that the resident’s gangrene, skin ulcers, and above the knee amputation were the result of negligence. Although the specifics cited in the opinion are scant, it appears that the nursing home was able to establish, via expert testimony, that the resident’s conditions were the result of long-standing battles with vascular disease, chronic skin conditions, and other pre-existing conditions as opposed to substandard care.
The Negron appellate court seems to have focused on the lack of specificity articulated in the expert’s affidavit. Although the resident’s expert opined that additional measures should have been taken by the nursing staff to treat the above referenced conditions, the expert “failed to identify specific departures made by the other nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken. Given these omissions, the court further stated:
The failures are especially troublesome, given plaintiff’s expert’s concession that decedent’s preexisting conditions placed him at an increased risk for the conditions at issue. Moreover, the expert failed to address the evidence supporting vascular involvement and failed to establish the nursing home’s negligence, and not the natural progression of decedent’s diseases and conditions, was a substantial factor in producing the injury.
The above recent decisions provide reassurance that the courts will hold plaintiff’s experts to the intended burden of providing more than speculative testimony concerning both negligence and causation. In the grey areas of medical standards, some of the strong language in the respective cases will provide positive support when dealing with similar blanket and baseless expert opinions.
1 Chaskes D.O., Sandra Sanit-Eloi, ARNP and Vohra Halth Services, P.A., Appellants v. Zoila Guitierrez, as Personal Representative of the Estate of Dilia Dolores Jaquez, Appellee, 2013 WL 1980214 (Fla. 3d DCA 2013).
2 Negron v. St. Barnabos Nursing Home, et. al., 105 A.D. 3d. 501, 963, N.Y.S. 2d 101 (2013)
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