LINCOLN, Neb. (Legal Newsline) - A trial judge was justified in dismissing the lawsuit of a man who accused his trauma surgeon of improperly implanting a blood filter but had no expert to testify about the local standard of care, the Nebraska Supreme Court ruled.
The plaintiff’s expert tried to offer an opinion about a “national” standard of care but Nebraska law requires knowledge about local facilities and practices, the court ruled.
Ivan Konsul sued Dr. Juan Antonio Asensio and others after an inferior vena cava blood filter implanted in his leg to prevent blood clots from causing pulmonary embolism. The filter migrated, however, and ended up behind his heart where doctors could not remove it.
Konsul’s lawyers tried to get Dr. Asensio to testify about whether other physicians violated the standard of care and he was going to argue that in his defense. But the doctor’s lawyer advised him to refuse, citing the attorney-client privilege and saying he wasn’t going to serve as Konsul’s expert witness.
The trial judge rejected Konsul’s objection and the case went before a jury. During trial, Dr. Asensio’s challenged the qualifications of plaintiff expert Dr. David Dreyfuss, saying he had never been to Omaha before this case and couldn’t testify about the local standard of care. The judge ultimately struck Dr. Dreyfuss as an expert, citing a recent Nebraska Supreme Court decision, Carson v. Steinke, requiring medical experts to have “personal knowledge” about medical practice in a specific locality.
Dr. Dreyfuss argued he was an expert on the implantation of IVF filters and could testify about the national standard of care. But the trial judge disagreed and dismissed Konsul’s lawsuit. The plaintiff appealed, but the Nebraska Supreme Court affirmed the dismissal in a June 14 decision by Justice Lindsey Miller-Lerman.
The trial judge erred by allowing Dr. Asensio to refuse to answer questions about what he might say about other doctors at trial, the Supreme Court said.
“We know of no reason why Konsul would be precluded from probing the possible testimony Asensio might offer at trial, including any testimony that would blame others for possible adverse outcomes,” the court said. But the error was harmless because Konsul’s expert wasn’t qualified to testify about the alleged malpractice.
“Expert testimony offered to establish the standard of care in a medical malpractice case is admissible only if its proponent can demonstrate the expert’s familiarity with the relevant standard of care in the defendant’s community or a similar community,” the court said.