DAYTONA BEACH, Fla. (Legal Newsline) - A trial court improperly disregarded the testimony of a plaintiff expert who based his opinion on the assumption a hospital had failed to get rid of every vial of contaminated heparin, a Florida appeals court ruled, breathing new life into a long-running lawsuit.
Robert Dumigan sued Holmes Regional Medical Center after he suffered heparin-induced thrombocytopenia and thrombosis following heart surgery in May 2008. Dumigan blamed the complications on contaminated heparin, a blood thinner administered during cardiac procedures.
Earlier that year, Baxter Healthcare had recalled vials of heparin and Holmes Regional conducted three “sweeps” of its locations to identify and remove all the suspect vials. The hospital said it ultimately cleared its facility of all Baxter heparin, regardless of lot number. But plaintiff witnesses said the hospital didn’t document the removal from all locations, including anesthesia carts.
The anesthesiologist for Dumigan’s surgery said he hadn’t been notified of the recall and didn’t record the lot numbers of the heparin vials he used. He testified that the patient’s sudden drop in blood pressure was expected and reflected necessity of using blood thinners in cardiac surgery.
The trial court dismissed the case at the close of the plaintiff’s evidence, ruling that the jury could only decide for Dumigan if it engaged in impermissible “inference stacking,” or assuming the existence of essential facts by inferring them from other contested evidence. In this case, the jury would have to agree with the plaintiff’s expert, Dr. Mark Levin, that Dumigan’s complications were caused by contaminated heparin even though there was no evidence the patient was injected with it.
Florida’s Fifth District Court of Appeal reversed and ordered a new trial, in a Jan. 21 decision written by Judge Jay Cohen.
The plaintiff and defendant cited another Florida appeals court decision in which a homeowner sued a contractor, blaming improperly installed insulation for a fire. Holmes Regional said the decision established that juries can’t base a finding of fact upon an initial conclusion that is contradicted by substantial evidence. The plaintiff cited other language in the same decision allowing expert witnesses to base their opinion upon inferences from circumstantial evidence.
“The expert must rely to some degree on the assumption underlying the hypothetical question,” the appeals court ruled. “As a result, unless an expert opinion is based purely on speculation, impermissible stacking will not be found in this context.”
Doctors engage in a similar practice when they render opinions based on differential diagnosis, the court observed, determining the most likely cause of an illness. In this case, Dr. Levin based his opinion upon a variety of facts including the patient’s sudden drop in blood pressure after heparin was administered, swelling, the speed of the onset of thrombocytopenia and Dumigan’s earlier exposure to heparin with no side effects.
“Ultimately, when viewed in the light most favorable to Dumigan, doubt exists as to whether contaminated heparin was still circulating and whether it was administered to Dumigan; Holmes Regional cannot conclusively state that it removed all contaminated heparin prior to his surgery when it failed to track lot numbers or obtain a certificate of compliance with the recall,” the court concluded. “The trial court erred in making a credibility determination and weight evaluation when granting a directed verdict.”