How can liability for medical malpractice be avoided for an allegedly unnecessary cardiac procedure? And, what is a potential strategy for the physician to employ?
Proof that the physician or other provider did not deviate from the applicable standard of care or that any deviation was not a proximate cause of the patient’s injury related to an allegedly unnecessary cardiac procedure may avoid liability. In the alternative, the provider may be able to challenge the sufficiency of the proof presented by the patient, such as by alleging the failure to provide required expert testimony.
A physician or other health care provider can defend against a medical malpractice or negligence action involving an allegedly unnecessary cardiac procedure in several ways. The defendant can demonstrate that one or more of the required elements of the cause of action does not exist or has not been proved. These elements include the existence of a legal duty owed by the defendant to the plaintiff, a breach of the duty that proximately caused the plaintiff’s injury, and the resulting damages. The physician or other providers also may be able to raise an affirmative defense to the allegations of malpractice. For a discussion of the required elements of a malpractice action and more information on defenses to a medical malpractice or negligence action involving unnecessary cardiac procedures, see the Introduction to this Report.
Expert testimony generally will be necessary to establish the elements of a medical malpractice action. A physician or other health care provider can defend against a malpractice claim involving an allegedly unnecessary cardiac procedure by demonstrating that the patient failed to present sufficient evidence to establish the required elements of the cause of action. See generally: Basis of Medical Testimony, 6 Am. Jur. Trials 109; Presenting Plaintiff's Medical Proof—Common Injuries and Conditions, 6 Am. Jur. Trials 1. See also the discussion of expert testimony requirements in the Introduction to this Report.
An action against physicians, a cardiology center, and a hospital based on an allegedly unnecessary angioplasty was properly dismissed when the plaintiffs failed to present any expert testimony to establish the applicable standard of care or its breach. The patient, who was 74 years old, diabetic, morbidly obese, and unable to walk, died less than three weeks after the angioplasty was performed. After her death, the patient’s children brought a malpractice action against the providers, alleging that their care of the patient was careless, negligent, and improper, and that the patient did not give informed consent to the cardiac surgical procedure. The defendant health care providers filed motions for summary judgment, arguing that the plaintiffs had failed to present any expert witness to give an opinion as to the standard of care owed to the patient or to offer an opinion that the providers had breached the standard of care owed to the patient. At the hearings on the motions for summary judgment, the plaintiffs failed to make an appearance. The district court found no genuine issue as to any material fact regarding the claims made by the plaintiffs against the providers, and dismissed with prejudice all of the plaintiffs' claims. The plaintiffs appealed.
The appellate court stated: “In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiff's injuries. Likewise, in a medical malpractice action against a hospital, the plaintiff must prove that the hospital caused the injury when it breached its duty. Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” The court concluded that no exception applied, and thus the plaintiffs were required to present expert medical testimony sufficient to satisfy their evidentiary burden of proof at trial, which they failed to do. It noted specifically that there was no testimony or evidence in the record that set forth the standard of care applicable to any of the providers in their care and treatment of the patient, or that established any negligent action or omission on the providers' part caused or contributed to the patient's decline and death. To the contrary, the court stated, the unrebutted opinion of the medical review panel was that there was no evidence that any of the providers failed to meet the applicable standard of care. Summary judgment for the providers thus was appropriate, the appellate court concluded. See: Shepherd v. Baton Rouge Cardiology Center, 2017 WL 4974601 (La.App. 1 Cir., Nov. 1, 2017) (not designated for publication).
In limited circumstances, when the doctrine of res ipsa loquitor applies, expert testimony may not be needed in a medical malpractice action. This doctrine provides that the facts or circumstances surrounding an injury may give rise to a presumption or inference of negligence on the part of the physician, surgeon, or other provider. For the doctrine of res ipsa loquitor to apply, proof generally must be presented that: (1) the thing that caused the patient’s injury was under the management and control of the provider, (2) the occurrence was of the type that in the ordinary course of things would not occur if the provider who had management and control used proper care, and (3) the injury was not the result of the patient's own act or neglect. In the absence of an explanation by the provider to rebut the inference, meeting these requirements is deemed to provide sufficient or reasonable evidence that negligence occurred. See generally: Physicians and surgeons: res ipsa loquitur, or presumption or inference of negligence, in malpractice cases, 82 A.L.R.2d 1262.
In a patient’s action alleging that a surgical bypass of his left coronary artery was unnecessary, the court found that the doctrine of res ipsa loquitor did not apply, and that expert testimony was required. The patient brought claims of medical malpractice and lack of informed consent against a cardiac surgery center, where he underwent a quadruple coronary artery bypass graft procedure. The complaint alleged that the bypass of the patient’s left coronary artery was unnecessary, and caused the patient to suffer damages, including “a lengthy recovery period, lack of appetite, difficulty hearing, negative impacts on his employment opportunities and social life, and ‘writer's block’.” The cardiac surgery center moved for summary judgment, arguing that the patient’s complaint should be dismissed because the patient had failed to identify any expert support for his claims. The trial court granted the motion. The patient appealed, arguing that “expert testimony is not required where an ordinary person could reasonably infer the ultimate fact required to be established,” or, in the alternative, that the evidence he presented was sufficient to entitle him to an inference of negligence under the doctrine of res ipsa loquitur.
The appellate court rejected these arguments. It noted that, for res ipsa loquitur to apply, the following criteria had to be met: “(1) the accident or occurrence that caused the plaintiff’s injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency that caused the plaintiff's injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence.” Although the court acknowledged that “expert medical testimony is not necessary if the questioned practice of the professional is such a gross deviation from ordinary care that a lay person could easily recognize it,” it concluded that the proper procedure for coronary artery bypass surgery was “far beyond the common understanding or expertise of a layperson.” Without knowing the professional standard of care for a health care provider conducting this type of surgery, the court concluded, a layperson would not be able to infer negligence from the provider's actions. The court also noted that the patient failed to present any expert testimony to support his claim of lack of informed consent to the procedure. The appellate court concluded that the patient had not met his burden to set forth specific facts showing a genuine issue of material fact for trial, and thus summary judgment for the health care provider was appropriate. See: Mariano v. Swedish Cardiac Surgery, 178 Wash.App. 1004, 2013 WL 6199263 (Ct. App. Wash., Div. 1, Nov. 25, 2013) (not designated for publication).
For the physician to be successful in litigation involving an allegedly unnecessary cardiac procedure, and avoid malpractice, proof must be presented that:
- The defendant physician or other health care provider did not breach the applicable standard of care owed to the patient, or any breach was not a proximate cause of the patient’s injuries, or
- The patient failed to present sufficient proof, including expert testimony, to establish the required elements of a medical malpractice action related to the allegedly unnecessary cardiac procedure
See: Practice the Techniques - Checklists providing an example fact checklist that can be used to determine liability for an unnecessary cardiac procedure