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Appeals Court Expounds on Expert Net Opinion Rule in Medical Malpractice Decision

Medical malpractice cases rely heavily on expert medical opinions because negligence is established by the breach of a physician’s standard of medical care. Not all expert testimony is admissible at trial, however. Each jurisdiction maintains rules of evidence to guide which sort of expert testimony is admissible. For example, NY CPLR Section 4515 sets forth the rules for admitting expert testimony in New York medical malpractice cases.

In a recent case, a plaintiff sought the services of a plastic surgeon and underwent abdominoplasty, also known as a “tummy tuck,” at the age of 57. The plastic surgeon later conducted multiple unsuccessful scar revisions, but the surgeries were botched. The plaintiff’s plastic surgeon refunded her medical expenses.

The plaintiff sought the treatment of other doctors to help correct the botched tummy tuck. Eventually, the plaintiff consulted with the defendant in the case, who recommended a less invasive, in-office procedure, which she underwent in June 2008. In several follow-up appointments, the plaintiff complained of abdominal pain and vaginal irritation. The plaintiff was referred to another doctor, who diagnosed her with an umbilical hernia, and she filed a lawsuit against the surgeon who performed the less invasive procedure.

The plaintiff hired a board-certified plastic surgeon as an expert witness; however, during pre-trial proceedings, the court granted the defendant’s motion in limine to exclude the plaintiff’s expert testimony on the ground that it was a net opinion. The plaintiff then appealed the trial court’s ruling.

The court reviewed whether the expert testimony was admissible under New Jersey law. The expert must be qualified in his or her field to offer testimony that will help the jury or other trier of fact understand the medical evidence. Moreover, expert opinions must be derived from (i) the expert’s personal observations, (ii) evidence admitted at trial, or (iii) data relied upon by the expert that is not necessarily admissible in evidence but that is the type of data normally relied upon by experts. The net opinion rule forbids the admission of medical expert testimony and conclusions that are not supported by factual evidence or other data.

The appeals court concluded that the plaintiff’s expert testimony failed to establish causation regarding her claim against the defendant. Specifically, the expert did not provide objective grounds to conclude that the defendant failed to consider the elasticity of the plaintiff’s abdominal skin. The expert also did not provide a factual basis to conclude that the defendant’s minor scar revision caused the plaintiff’s surgical complications that were at issue in this lawsuit. The expert had failed to show how the minor procedure could have led to such serious consequences. Thus, causation was the issue for which the expert’s testimony failed.

If you were injured during surgery, or if a loved one was harmed or killed while undergoing surgery, you may be entitled to significant compensation. To speak with a Syracuse surgical malpractice attorney about your case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 833-200-2000 or contact us online. We offer evening and weekend appointments as well as home and hospital visits.

More Blog Posts:

New York Woman Dies After Undergoing Buttock-Enhancement Procedure, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 15, 2017

Pathology Malpractice Claim in New York Illustrates Importance of Expert Witness Testimony, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 8, 2017

New York Court Allows Botched Spinal Surgery Lawsuit to Proceed, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 1, 2017

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