Court of Appeals Discusses Expert Testimony

Expert witness disclosures have been a perennially hot topic for several years now, as repeatedly discussed in other posts.  The Nevada Court of Appeals has now contributed to the topic.

Roberts v. Libby is an unpublished order concerning a defense verdict in a medical malpractice case.[1]  The plaintiff had hardware implanted due to a fractured ulna.  The hardware was later removed and Plaintiff alleged the removal surgery was negligently performed, causing him to develop compartment syndrome that required yet more surgery.  During trial, the district court allowed the subsequent treating physician, Dr. Bronstein, to offer opinion testimony about the medical care provided by the prior treating physician who was being sued, Dr. Libby.  The Plaintiffs objected to this, but the Court of Appeals affirmed.

Here, Dr. Bronstein offered opinions concerning the surgery performed by Dr. Libby only days before Dr. Bronstein performed Daniel’s emergency surgery. Dr. Bronstein testified that he consulted with Dr. Libby at UMC regarding Daniel’s prior surgery involving the hardware removal and muscle herniations. This information was important in understanding Daniel’s later complication involving compartment syndrome. Moreover, Dr. Bronstein testified that in order to treat Daniel, he relied on Daniel’s medical history, Dr. Libby’s post-operative reports, and conversations directly with Dr. Libby. Thus, under these facts, the district court did not err when it allowed Dr. Bronstein to testify to opinions concerning Dr. Libby’s medical treatment regarding the hardware removal surgery, and Daniel’s medical care after the surgery, because the information was critical to Dr. Bronstein’s own emergent intervention.

This part of the opinion makes sense.  In other words, Dr. Bronstein’s opinions about the standard of care and whether the prior medical treatment met that standard were formed as a result of Dr. Bronstein’s own treatment.  This made him a non-retained expert who could testify.  Had Dr. Bronstein been provided the records only later, he may have been converted to a retained expert.  Regardless, the Court of Appeals never discussed whether Dr. Bronstein had been adequately disclosed as a non-retained expert witness.  It is one thing to properly form the opinions, it is another to adequately disclose them.

The next argument was the defense retained medical expert was allowed to offer a previously undisclosed opinion.

Here, Dr. Horowitz’s report broadly stated that Dr. Libby “performed a reasonable and appropriate surgery” and the expert report specifically discussed both hardware removal and closing the fascia. Thus, the report encompassed closing the fascia in assessing that Dr. Libby did not breach the standard of care. Although it is arguable that the better practice would have been for Dr. Horowitz to supplement the record to describe in more detail his opinion of Dr. Libby’s performance of the surgery, we cannot conclude under these facts that Dr. Horowitz testified to an undisclosed opinion.

Dr. Horowitz may have offered an undisclosed opinion by testifying that the compartment syndrome would have been evident within eight to twelve hours, rather than three days later as happened in this case. However, this testimony was offered to contradict the Robertses’ expert’s testimony that the compartment syndrome occurred as a result of closing the fascia. Thus, as the district court noted, Dr. Horowitz’s testimony on this point may have been permissible to impeach the Robertses’ expert’s testimony that the compartment syndrome likely set in immediately after Dr. Libby’s surgery.

Further, the Plaintiffs did not show on appeal that, “[i]n light of the substantial evidence supporting the jury’s verdict, the Robertses have not shown the outcome of the case would have changed had this testimony not been given.”

This section of the opinion initially confused me.  Ultimately, I believe it is stating that Dr. Horowitz’s opinion was that the standard of care was met based upon the evidence provided and the compartment syndrome was unrelated to the surgery.  Plaintiffs’ expert offered contradictory testimony and an opinion that the malpractice was evident within a certain period of time.  Based upon that, Dr. Horowitz was properly allowed to explain how and why he reached a different conclusion.  If so, then this ruling is consistent with my understanding of the scope of permissible testimony.

[1] No. 66513, 2016 Nev. App. LEXIS 255, 2016 WL 3597421 (Nev. App. 2016).