Bad Testimony Nixes Doc’s Med Mal Trial Win: Va. Justices
By Y. Peter Kang, Law360 – 4/13/2017
The Virginia Supreme Court on Thursday overturned a jury verdict clearing a doctor of allegations he negligently treated a child with sleep apnea, which purportedly led to the child’s death, saying certain expert witness testimony was inadmissible because it was based on an assumption not grounded in fact.
The child’s mother and plaintiff, Mariam Toraish, lodged a medical malpractice suit claiming ear, nose and throat specialist Dr. James J. Lee failed to order overnight monitoring of the 5-year-old boy following an outpatient tonsil removal surgery that purportedly contributed to his death. In ordering a new trial, the state’s highest court ruled that the trial judge was wrong to allow Lee’s expert witness testimony stating that the cause of death was due to a genetic disorder, saying it didn’t properly address Toraish’s primary claim that her son died from “respiratory compromise” due to his severe obstructive sleep apnea.
One of Lee’s expert witnesses, pediatric geneticist Dr. Simeon Boyd, conducted a differential diagnosis, in which a doctor narrows down the possible causes of death until only one remains, and concluded that the patient died of cardiac arrest due to a genetic disorder called Brugada syndrome.
Boyd had ruled out respiratory compromise based on the autopsy report, which listed the cause of death as “cardiac arrhythmia of unknown etiology,” but the appellate court said both sides’ experts acknowledged that respiratory compromise could have led to cardiac arrhythmia while the autopsy report provided only speculation about the possibility of an underlying genetic cause stemming from the child’s parents’ status as first cousins.
“Thus, instead of excluding respiratory compromise as a cause of death, the autopsy report leaves it open as a possibility,” the justices wrote in a 10-page opinion. “Accordingly, respiratory compromise was not excluded by Dr. Boyd nor any source upon which he relied. His differential diagnosis was therefore founded upon an assumption that was not established during the trial. The circuit court abused its discretion by admitting it into evidence.”
In addition, the state high court shot down Lee’s argument that Boyd had also relied on an expert opinion made by a pulmonologist ruling out respiratory compromise, saying that can’t be possible since the pulmonologist issued his opinion months after Boyd had already concluded that respiratory compromise wasn’t the cause.
However, the justices rejected Toraish’s assertion that Lee shouldn’t have been allowed to testify as an expert at trial, saying he was actually testifying as a fact witness when he said that he wasn’t aware that the child’s parents were first cousins, that the child’s siblings previously died and had he known those facts he would not have gone ahead with the surgery.
“[Lee’s] statement that he would not have recommended surgery had he known about the consanguineous marriage or predeceased siblings was not an expert opinion,” the court said. “He did not testify that when treating children with [the child’s] background, a reasonably prudent otolaryngologist should not perform tonsillectomy and adenoidectomy surgery. He simply stated, from his personal knowledge and experience, that he would not have done so.”
An attorney for Toraish, L. Steven Emmert, told Law360 that the ruling was the latest in which the Virginia high court has excluded an expert opinion based on speculative assumptions.
“In this case, the doctor purported to exclude all causes of death except one — a ‘differential diagnosis’ — but he was unable to exclude the cause that was the mother’s theory of the case,” he said. “That meant that his opinion was inadmissible, so the case goes back for a new trial.”
An attorney for Lee did not immediately respond to a request for comment Thursday.
Toraish is represented by L. Steven Emmert of Sykes Bourdon Ahern & Levy PC, and Robert T. Hall, Gobind S. Sethi and Samantha K. Sledd of Hall & Sethi PLC.
Lee is represented by Richard L. Nagle, James N. Knaack and Benjamin M. Wengerd of Hancock Daniel Johnson & Nagle PC.
The case is Mariam Toraish, Administrator of the Estate of Adam Toraish, Deceased v. James Jay Lee, case number 160495, in the Supreme Court of Virginia.