Court Limits Use of ER Testimony Restriction

An important component of a medical professional liability lawsuit is the requirement that the plaintiff prove a causal connection between a breach in the standard of care and a claimed injury. A new case from the Court of Appeal provides an excellent illustration of this concept.

(Typical of most Court of Appeal opinions highlighted in Case of the Month, the underlying facts alleged by the plaintiff are assumed true so that the court can address the legal lesson at hand. In a trial, the defendant would have the opportunity to dispute such facts.)

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Clara Stokes presented to the hospital’s emergency department complaining of sudden pain in the back of her head radiating to her neck. She told the ER physician, Ellen Baker, MD, she experienced the pain and a migraine headache since twisting her neck two days earlier. She also reported a recent increase in migraine headaches, that she was suffering from the worst headache in her life, that her primary pain intensity was “10/10,” that she had vomited the evening before, and that she felt right sciatic pain.

Dr. Baker’s exam found neck tenderness, no neurological deficit, and full strength in the patient’s arms and legs. A CT scan was negative for head or brain injury and a lumbar spine x-ray was unremarkable. A cervical spine x-ray showed a congenital fusion abnormality and degenerative changes. Dr. Baker contacted the on-call neurologist, who said he could see Ms. Stokes in a few days.

Dr. Baker concluded Ms. Stokes had an acute migraine headache, dehydration, and severe nerve degeneration. She prescribed pain medication and advised her to contact the neurologist for a follow-up visit.

Ten days later, Ms. Stokes suffered an intracranial bleed secondary to a ruptured aneurysm and underwent a craniotomy and clipping, leaving her with persistent cognitive and physical impairments. She sued Dr. Baker for not properly addressing her condition in the ER.

In a motion for summary judgment, Dr. Baker’s defense lawyer presented a sworn declaration from Jonathan Lawrence, MD, an emergency room physician. In his declaration, the Dr. Lawrence stated that Dr. Baker conformed with the standard of care in her treatment of Ms. Stokes. Dr. Lawrence also stated his further opinion “that no act or omission by [Dr. Baker] caused or contributed to any injury” as alleged by the plaintiff.

In opposition to the motion, the plaintiff’s attorney submitted the declaration of Michael Ritter, MD, also an emergency room physician, who stated his opinion that Dr. Baker fell below the standard of care by failing to order tests to rule out a subarachnoid hemorrhage. When the CT came back negative, Dr. Ritter opined, the standard of care required a lumbar puncture. When such a puncture revealed blood in the cerebral spinal fluid, as it would in Dr. Ritter’s view, the standard of care would have required Dr. Baker to refer Ms. Stokes to a neurosurgeon or neurointerventional surgeon.

But it was a second opinion submitted by the plaintiff that made things legally interesting. That is because in a medical professional liability case against a physician performing emergency medical care in an acute care emergency department, California Health and Safety Code Section 1799.110(c) requires that “the court shall admit expert testimony only from physicians who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.”

The second declaration submitted by plaintiff, however, was by George Rappard, MD, a neurointerventional surgeon. According to Dr. Rappard, had Dr. Baker diagnosed a subarachnoid hemorrhage (which he described as an “early warning” bleed indicative of an aneurysm likely to soon rupture) and referred her to a neurosurgeon or neurointerventional surgeon, that specialist would have identified the aneurysm and performed repair surgery on an emergent basis. In claiming that such failure by Dr. Baker was a substantial factor in causing the plaintiff’s injury, Dr. Rappard explained that the morbidity for repair of an unruptured aneurysm is two percent, compared to 70 percent following a subarachnoid hemorrhage from a ruptured aneurysm.

On the request of Dr. Baker, the trial court excluded Dr. Rappard’s declaration on the basis that Dr. Rappard lacked the emergency-room credentials required by H&S Section 1799.110(c). With Dr. Rappard’s testimony on causation now gone, Dr. Lawrence’s statement that there was no causation between Dr. Baker’s acts and the injury became uncontested, allowing the trial court to render judgment in favor of Dr. Baker.

On appeal, the Court of Appeal conceded that excluding Dr. Rappard’s declaration was “consistent with the strict letter of the expert qualification clause” in the Health and Safety Code.

However, the Los Angeles-based Court of Appeal in Stokes v. Baker, continued: “Although ambiguity is generally a condition precedent to interpretation, the literal meaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute’s legislative history, appear from its provisions considered as whole.”

In this setting, then, the question was whether the Legislature intended to permit expert testimony only from emergency room-qualified physicians on all medical issues in a trial, as Dr. Baker contended, or whether it was just testimony on standard of care that required an expert to have recent experience in the ER.

In looking through the statute’s legislative history, the Court of Appeal noted that in 1978, then Gov. Jerry Brown nearly vetoed the bill creating the ER experience requirement for witnesses out of concern that its language could be read to “bar expert medical testimony on issues other than the standard of care expected of emergency room physicians.” In other words, the exact issue faced in Stokes v. Baker. The Governor let the bill become law without his signature, however, on its author’s commitment to address the issue in subsequent legislation.

Though that follow-up legislation did not pass, the author of the original bill stated in a letter printed in the Assembly Journal a few months later: “The Legislature intended that this expert witness qualification apply only to those witnesses testifying as to the standard of care required of an emergency department physician and not to those witnesses testifying to the issue of recoverable damages.”

The Court of Appeal found the legislative history consistent with interpreting the statute “on how a jury would judge the reasonableness of an emergency room physician’s conduct — not the causation or damages element of a negligence claim” and reversed the trial court’s defense judgment.

The court also commented on “obvious absurdities” that would result from the position advocated by the defense. “The practical effect . . . would be to close the courthouse doors to plaintiffs in cases like this one, where causation and damages implicate medical issues outside the practice of emergency department physicians.”

And in another wrinkle, the Court of Appeal pointed out that the defense expert, Dr. Lawrence, is an emergency room physician with “no specialization or apparent experience in either neurosurgery or neurointerventional surgery.” As such, the Court of Appeal wrote that “unless Dr. Lawrence is able to show he has special skill, experience, training, or education regarding the neurosurgical issues raised by plaintiff’s theory of liability,” he is not qualified to offer medical testimony on causation under the California Evidence Code.

   

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com

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