Failure to Diagnose and Expert Testimony in New Mexico Emergency Room Medical Malpractice Claim
In the recent case of Holzem v. Presbyterian Healthcare Services, the New Mexico Court of Appeals addressed the admission of expert testimony in a New Mexico medical malpractice. In this case the claim was unfortunately also involved a wrongful death claim.
The Court did so in the context of a trial court granting summary judgment in favor of the defendants based upon the highly questionable exclusion of the plaintiff‘s expert witness.
The case points out the importance/necessity of experts in medical malpractice cases. It also shows the importance of having the right expert for the right specialty which may in fact give rise to a need for more than one expert. In this case, there multiple “specializations” at issue, infectious disease, administration of Tamiflu, and Emergency Room practices.
Failure to Diagnose Influenza Leading to Death
The case involved a failure by an emergency room doctor to diagnose influenza despite clear symptoms consistent with the flu. The patient died due to the untreated pneumonia.
More specifically, the case dealt with the failure to conduct a differential diagnosis and treat the patient accordingly. A differential diagnosis requires the doctor at a minimum to rule out the most serious possible illnesses.
In this case, the ER doctor failed to even test the patient for influenza. Instead the doctor sent the patient home having provided only “palliative treatment” addressing only the symptoms without determining the underlying cause of the symptoms. The patient subsequently died from complications related to the flu.
The plaintiff‘s case was brought on the basis of the failure to conduct a differential diagnosis. The Court of Appeals noted that the trial court appeared to view it differently as a failure to administer Tamiflu. There was also an issue that the expert was not qualified to testify on ER standards. The Court of Appeals found that the plaintiff‘s expert was qualified on all grounds and that the Court‘s exclusion of his testimony was an abuse of discretion.
Expert‘s Experience and Expertise
In so holding the Court addressed the expertise of the expert as established at trial. The plaintiff‘s expert was an infectious disease specialist with 29 years of teaching experience at the University of New Mexico Medical School. The defense argued that the doctor had no experience diagnosing and treating influenza.
The plaintiff then presented special affidavits from the expert that he had “personal experience in diagnosing, observing, treating and following influenza patients in the many hundreds, if not thousands, he is thoroughly familiar with this infectious disease, its consequences, and the effectiveness of the various treatments.”
The defendants moved to strike the affidavits arguing that he should be bound by the deposition testimony even though the parties had agreed to post-deposition supplementation of discovery. The trial court failed to rule on the motion.
The Court of Appeals overruled the trial court on the exclusion of the expert on the basis of his lack of expertise. However, as discussed below, the Court left open the issue of how the trial court should rule on the admissibility of the special affidavits.
Abuse of Discretion by Trial Judge
In overruling the trial court on the exclusion of the expert‘s testimony, the Court noted that the decision to exclude expert testimony is generally left to the discretion of the trial judge. However, the judge will be overruled in case of an abuse of said discretion.
The Court here found that the trial court had abused its discretion in excluding the expert testimony. The Court noted that the trial court had failed to incorporate into its decision the lack of expertise in emergency room medicine, and therefore it could not serve as a basis for exclusion.
Having done so, the Court suggested that the expert had sufficient expertise in diagnosing and treating influenza and that there were no different standards for doing so between infectious disease specialists and ER doctors.
This recognizes the fact that influenza is very common and readily diagnosed and treated. It should not matter that the patient was treated by an ER doctor as opposed to an infectious disease doctor. After all, what is the ER for if not for emergencies.
Back to the Trial Court
Having discussed the issue of expert testimony at length, the Court recognized that the trial court had failed to rule on the special affidavits which served as the foundation of establishing the expert‘s requisite expertise. The Court‘s overruling the trial court presumed the admission of the affidavits.
As such, after all the discussion on expert testimony, this is the crux of the Court‘s opinion. The Court took no position on how the Court should rule on the motion to exclude the affidavits. It remains to be seen how the case will end as it may very well be that the trial court now will exclude the affidavits without which the admission of the expert‘s testimony is again brought into question.
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