Denial of New Trial Medical Malpractice

No one is perfect.  Even doctors, despite their best intentions can make mistakes.  The law is only involved when a doctor did not follow the common practice in the medical community, also known as a standard of care.

A recent Arizona Court of Appeals decision looks in-depth into what the standards are for a medical expert in the state of Arizona and how to evaluate expected future costs into a damages claim. Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014).

The facts are Lori Sandretto slipped on a wet floor and tore a miniscus in her knee.  The first doctor she saw, who is not a party to this lawsuit, performed a surgery on her knee.  This did not fix the problem and Sandretto continued to suffer from knee pain.  She sought medical advice from a second doctor about her knee pain, Dr. Charles Calkins, an orthopedic surgeon employed by Payson Healthcare Management (PHM).  Calkins determined that the meniscus was still torn and performed a second surgery.  During the second surgery Calkins took sample fluids from Sandretto’s knee and determined there was not an infection.

Within a week Sandretto’s knee was swollen and painful.

Over the course of the next month Sandretto saw Calkins twice, his Physician Assistant once (PA), and spoke to the PA over the phone once.  Calkins who believed it was a skin infection tried different treatments.  None of treatments seemingly worked.

Calkins went in and saw the PA for a second time.  This time the PA tested the fluid in Sandretto’s knee for a Methicillin-resistant Staphylococcus Auerus (MRSA) infection.  The results came back positive.

Calkins then performed an additional surgery to wash-out the MRSA infection (her third surgery).  This occurred approximately seven weeks after Sandretto initially saw Calkins for knee pain.  Sandretto’s knee required two more wash-out surgeries, which Calkins performed.  Calkins eventually decided Sandretto needed a knee replacement (bringing Calkin’s total surgeries on the knee up to five).

Sandretto’s knee pain continued.  She sought advice from a third doctor who diagnosed her with Chronic Regional Pain Syndrome (CRPS), pain caused by a nerve injury.

Sandretto  sued Calkins and his employer PMH for not acting quick enough to diagnose the MRSA infection, which likely worsened her condition and caused permanent damage.

PMH moved for a new trial partly upon expert testimony and the calculation of damages.

Admissibility of Expert Testimony

PMH questioned the diagnosis of CRPS and questioned the trial expert’s methodology.

To make its determination the Arizona Court of Appeals relied mainly upon Arizona Rules of Evidence 702, and the court case Daubert v. Merrell Dow Pharmaceuticals Inc.  Rule 702 specifically provides guidance on expert testimony.  In 2012, Arizona amended Ariz. R. Evid. 702 to bring it inline with the corresponding federal rule.  The rule gives courts some guidance on how to determine if an expert is qualified in a certain area or not:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

— Ariz. R. Evid. 702

The Daubert Standard

The case Daubert v. Merrell Dow Pharmaceuticals Inc, 509 U.S. 579 (1993) set the modern standard for expert testimony.  Two families sued Merell Dow Pharmaceuticals (Merrell) claiming the drug Bendectin cause birth defects in their children.  Merrell provided the expert Dr. Steven H. Lamm who testified he reviewed all of the available literature on Bendectin and human birth defects, which included more than thirty published reports focusing on humans.  Not a single study linked birth defects to Bendectin.

The families produced eight experts of their own (the United States Supreme court gushed over the credentials of the experts in a footnote to the opinion).  These experts concluded that Bendectin did in fact cause birth defects, basing their opinions off of Bendectin studies in animal and pharmacological analysis of the chemical structure.

The district court did not accept the families experts because their evidence did not have general acceptance “in the field which it belonged.”  Since the families’ experts based their opinions off of animal tests and not human tests, then the court concluded it did not have general acceptance in the field.

The Court held there is no such litmus test whether scientific evidence will assist the trier of fact (either a judge or a jury).  The Court does give some general principles in addition to Fed. R. Evid. 702.  A judge should consider: if it can be tested, if it is subject to peer review, what the rate of error is (if it is a study), and if there is a “general acceptance” within the scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

Back to the Sandretto case.

Although grounded in science, medicine is a profession that requires physicians to rely on their previous experiences and sound judgements.

Sandretto’s expert said that MRSA was the “unifying factor” because the surgeries that followed the infection diagnosis would not have been required if not for the MRSA infection.  PMH said there was no way to create that causal chain and wanted to throw out Sandretto’s expert.  The Court did not agree PMH.  PMH did not provide the court any scientific literature in its Rule 702 objection that would undermine the causation argument.  In lieu of scientific literature, PMH used two documents from the internet that contained disclaimers that they were not to be used for medical treatment.  Moreover, the sheets were unsigned and not attributable to any person.  Reliance on general, unsigned medical advice found on the internet is typically not permitted under Rule 702.

Sufficiency of the Evidence / Damages

PMH argued the 7+ million dollar verdict shocked the conscious and was not supported by the evidence.

What PMH is asking is for the judge to overrule the jury’s verdict through the legal maneuver called a remiittitur.  A remittitur is based in fairness or equity, and is typically used as a check by judges on civil judgements of juries.  Alires v. Southern Pac. Co., 409 P.2d 714, 720 (Ariz. 1966).

The amount of a damages award is ‘a question of peculiarly within the province of the jury, and such award will not be overturned or tampered with unless the verdict was the result of passion or prejudice.’

Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014) (quoting In re Estate of Hanscome, 254 P.3d 397, 401 (Ariz Ct. App. 2011)).

As I was saying earlier, it is the juries’ job in order to determine damages.  However, a court can intervene if there is some kind of fundamental unfairness with the amount of the award.  A judge can either make this determination on her own, or the verdict can be appealed as in the present case with Sandretto.

PMH argues that since Sandretto’s causation expert should not have been allowed it resulted in skewed judgements.  Because of the improper testimony the jury was improperly influenced the jury, it likely would have been less or nothing at all if the correct decision about the expert was made in the first place.

In the court’s analysis it looked at how many direct past, present and future costs Sandretto would have to endure because of the flawed medical treatment.  Sandretto said the knee injury would cost her about $3.5 million during the course of her lifetime.

In addition to direct costs that Sandretto incurs, she is also entitled for intangibles like pain and suffering.  The Court determined that Sandretto’s pain was real and compensation for pain and suffering is a very individual determination.  Reasonable people may differ on how much one should receive for pain and suffering, so the Court said it would not interfere with the jury’s assessment.


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