State SC will let jury analyze med-mal witness

By John O'Brien | Nov 14, 2007


CHARLESTON - Just because an expert medical witness does not use the medical tools alleged to have caused harm does not mean he or she may not testify to the standard of care needed while using them, the state's Supreme Court of Appeals recently held.

Instead, defendant Dr. Tara Sharma will be able to draw attention to that fact to question the witness' credibility when plaintiff Jonathan Walker gets a new trial in Cabell Circuit Court, granted by a 4-1 decision Nov. 8.

"What this case demonstrates is how this Court's decision to abandon the locality rule in medical malpractice cases in favor of a standard of care more national in approach is often misemployed to prevent qualified physicians from offering testimony in cases brought under the (Medical Professional Liability) Act," Justice Joseph Albright wrote.

"As we observed in Paintiff (v. City of Parkersburg, 1986), the need for employing a locality rule in medical malpractice cases was no longer present due to the omnipresence of medical information relative to the treatment of diseases and injuries."

Sharma is alleged to have deviated from the standard of care when he caused a perforation in Walker's rectum as he performed a procedure to help relieve a blocked urethra. Sharma was using tools manufactured by the Bard Company.

During the 2006 trial, Walker's expert witness, Dr. Robert Lewis, testified that he is familiar with the standard of care needed while using Bard equipment, though he does not use it himself.

The court granted the defendants' motion for judgment as a matter of law that claimed Lewis did not establish a deviation from the standard of care on a national basis.

"Where the trial court went astray in making its ruling was to equate Dr. Lewis' purported lack of familiarity with a particularized instrument system with lack of knowledge as to the standard of care that applied to the use of that set of instruments," Albright wrote.

"The fact that Dr. Lewis, as a practicing urologist, uses a different method to perform a urethral dilation procedure does not disqualify him from giving testimony on the standard of care to be employed when performing this type of procedure.

"Because Dr. Lewis was clear in his testimony that he personally used a different method than the defendant doctor, the jury would have been free to attach whatever weight they decided to Dr. Lewis' testimony given that he did not employ the Bard instrument set in performing the procedure at issue."

Chief Justice Robin Davis concurred a reserved the right to file an opinion. She and Albright were joined in the majority by justices Spike Maynard and Larry Starcher.

Only Justice Brent Benjamin dissented. He also reserved the right to file an opinion.

"Quite simply, the trial court wrongly employed the precept of employing a standard in care that is national in approach to determine that Dr. Lewis' lack of familiarity with the particular method employed by surgeons operating at Charleston area hospitals prevented him from testifying as to the standard of care applicable to this case," Albright wrote.

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