Expert witness in standard of care testimony was excluded by lower court based on qualifications. The court of appeals confirmed this opinion, but overturned lower court opinion in substituting another expert.
Facts: This case (Preston et al. v. Amadei – Court of Appeals of Arizona, Division One – August 27th, 2015) involves medical malpractice and will be of interest to internal medicine expert witnesses. In June 2009, Jean Preston was involved in a motor vehicle accident and was admitted to the Kachina Point Health Care and Rehabilitation Center. She had cardiac issues that went back many years. After experiencing severe chest pains while in the hospital, she was seen by Dr. Amadei, the medical director. She was provided with nitroglycerin and the pain ceased. She subsequently died a few hours later and the medical examiner determined that she died of congestive heart failure. Her children sued Dr. Amadei for negligence and hired Dr. David Lapan as a standard of care expert.
The defense sought summary judgment on the following: 1) Dr. Lapan is not qualified to as a standard of case expert as his practice is in cardiology and Dr. Amadei specializes in internal medicine; 2) Plaintiffs could not establish that there was an act or omission by Dr. Amadei that caused the death of Ms. Presten; 3) Dr. Lapan’s standard of care expert was inadmissible under Arizona Rules of Evidence 702, which is equal to the Federal Rules of Evidence 702. The trial court granted the defense summary judgment on these as well as other grounds. After this, the plaintiffs filed a motion to substitute a new standard of care expert, which the court denied. The plaintiff’s appealed the decision.
Discussion: The plaintiffs state that the trial court should not have disqualified Dr. Lapan as an expert as he is more qualified than Dr. Amadei to treat the type of cardiac-related pain suffered by Ms. Presten. The court here must decide whether or not, over the course of a year at issue, Dr. Lapan spent the majority of his time practicing the same type of medicine as Dr. Amadei, as proscribed by statute. The court stated that Dr. Lapan did not have an active clinical practice in internal medicine, as there was was no evidence to support this conclusion.
The plaintiffs argue that the trial court erred when it denied it’s request to substitute a standard of care expert as untimely. Statutory law in Arizona (Section 12-2603(F) states that if there is any problem or issue with an insufficient affidavits in medical malpractice cases, the court shall allow parties reasonable time to cure it. In addition, a case cannot be dismissed on the basis of not disclosing an expert witness. In this case, the plaintiffs disclosed their expert’s affidavit within the discovery period. The defense did not raise any objections as to the sufficiency of the affidavit, and filed a motion for summary judgment after the deadline for disclosure. The appeals court thus stated that plaintiff’s should have been able to call upon another standard of care witness.
Held: The trial courts opinion excluding the expert witness testimony of Dr. Lapan is upheld, but reverses the opinion denying a substitute witness.