Oregon takes a relaxed approach to experts’ eligibility to support medical malpractice suits

October 7, 2013

Trees v. Ordonez, — P.3d —, 2013 WL 5497249 (Or. 2013)

This case features a malpractice suit supported by an expert testimony from a biomechanical engineer closely familiar with use of the medical device – a Synthes plate – installed on plaintiff’s cervical spine by the defendant neurosurgeon. The expert was a distinguished university professor and researcher who acted as a scientific reviewer for a variety of academic publications, including the Spine journal, and lectured to doctors. He testified that the plate was not correctly installed as it had not been bent to follow the curvature of the plaintiff’s spine. This misalignment did not allow the screws to be fully seated in the plate and properly fasten it. The expert also testified that some of the screw heads protruded above the plate because it was too short.

The trial court decided that this testimony did not establish that the neurosurgeon failed to meet the standard of care in treating the plaintiff. This decision was upheld by the Court of Appeals that reasoned that the expert’s testimony had “failed to bridge the gap between the biomechanical construct of the plate and the methods with which they were intended to be installed and whether compliance with those same methods as a medical matter set the standard of care for [neurosurgeons].”

The Oregon Supreme Court disagreed. The Court held that Oregon law does not require medical malpractice suits to be supported by medical specialists. Any expert, it ruled, will be eligible to support a suit so long as she has the requisite knowledge and experience. The Court accompanied this ruling with an observation that “Even in jurisdictions that require a medical doctor to establish the standard of care, the rationale for that rule is grounded in the knowledge and experience of the expert.” Consistent with this view, the Court decided that the engineer’s testimony was “sufficient for [the] plaintiff to survive a motion for a directed verdict on the standard of care and breach of the standard of care” and reversed the directed verdict.

This decision is unsatisfactory. Medical malpractice has a very precise meaning in Oregon and all other states. A doctor commits malpractice when she deviates from her specialty’s standards of practice. To identify those standards and the defendant’s deviation therefrom as precisely as possible, courts need an insider to the specialty to testify as an expert witness. Other specialists might be able to do so as well, but there is no assurance that it will happen in every case or even in the majority of cases. Absent this assurance, doctors would not be able to rely on their internal standards of practice as a safe harbor that protects them against malpractice suits. They would consequently try to cover their bases and intensify their resort to defensive medicine. Contrary to the Court’s view, jurisdictions that require medical doctors to establish the standard of care do not try to select the most knowledgeable and experienced expert witness. Rather, they want courts to make liability findings that doctors can predict and avoid.

In the case at bar, the biomechanical engineer was certainly a good witness on the Synthes plates theory.  In practice, however, a Synthes plate may not always fully align with the patient’s spine. Whether this alignment was requisite and achievable is a question for a neurosurgeon or an orthopedic surgeon familiar with the practice of installing those plates. Only one of those specialists could properly identify the standards and protocols that doctors have adopted for this procedure. The Court of Appeals had it right.