This case presents the question of whether an orthopedic surgeon is qualified to
testify as an expert as to the standard of care required in connection with the
performance of foot surgery by a licensed podiatrist certified in the field of
surgery.
This is a medical malpractice action arising out of surgery performed by the
defendant Jeffrey Yale, a licensed podiatrist in Connecticut, on the plaintiff’s
right and left feet. Yale is an agent and employee of the defendant Yale Podiatry
Group, P.C. His examination of the plaintiff disclosed a hallux limitus of the right
foot (restricted, painful range of big toe motion) and a tailor’s bunion of the left
foot. To alleviate the plaintiff’s condition, Yale operated on the plaintiff
implanting an artificial joint in the plaintiff’s right, big toe and removing a portion
of the plaintiff’s left small toe.
At trial, the plaintiff called Urelich Weil, an orthopedic surgeon, to testify to the
applicable standard of care for such surgery. The defendants objected to Weil’s
testifying, claiming that he was not qualified to testify as to the applicable
standard of care. The trial court sustained the defendants’ objection and the
plaintiff accepted. Weil was the plaintiff’s only expert witness and therefore the
plaintiff rested since without his testimony the plaintiff could not prevail. The
defendants moved for a directed verdict, which the trial court granted. The
plaintiff moved to set aside the verdict, which the trial court denied and the
plaintiff appealed.
The standard of care to which physicians and surgeons are held is “that which
physicians and surgeons in the same general neighborhood and in the same
general line of practice ordinarily have and exercise in like cases.” When the
court formulated that test, the “same general neighborhood” was interpreted as
a territorial limitation restricted to the confines of the community in which the
doctor practiced. In [a 1932 case], the “general neighborhood” was considered
the state of Connecticut. It has now been broadened to include the entire nation.
These cases reveal a trend towards the liberalization of the rules involving the
qualifications of medical experts.
Although the issue of this case does not involve the geographical limitation on
medical expert testimony, but rather the “general line of practice” limitation on
expert medical testimony offered in a medical malpractice action, the
liberalization of the evidentiary rules regarding the former limitation are relevant
in analyzing the latter limitation.
Our analysis of cases starts with [a 1975 decision] where the court found that
the trial court erred in excluding the plaintiff’s expert, a practicing surgeon
specializing in breast cancer surgery, from testifying as to the proper medical
standards of practice among obstetrician-gynecologists pertaining to breast
examinations. In that case, the testimony was “that breast lump examinations
are performed in exactly the same manner by obstetrician-gynecologists and
surgeons; and that these two specialties are identical with respect to breast
lump examination and diagnosis.” The threshold question of admissibility is
governed by the scope of the witness’ knowledge and not the artificial
classification of the witness by title.
Our appellate courts have had occasion to address this issue since that
case….The common thread tying these decisions together is that where the
evidence indicates that the specialties overlap and the applicable standard of
care is common to each, a medical expert from either of the overlapping groups
who is familiar with that common standard is competent to testify as to the
standard of care.
Connecticut has not previously considered whether an orthopedic surgeon can
testify as an expert against a podiatrist in a malpractice action. Other
jurisdictions, however, have addressed this issue, reaching varying decisional
results. The Ohio Supreme Court, citing a Connecticut case, held that the
plaintiff’s medical expert, a podiatrist, was competent to testify as to the alleged
malpractice, applying and failing to remove a cast which was too tight, by the
defendant orthopedic surgeon. The record disclosed that the application and
removal of casts is an area where these fields of medicine overlap. The court,
therefore, concluded that the podiatrist was qualified to testify as an expert. The
Georgia Court of Appeals addressed this issue, holding that where the evidence
indicates the fields overlap and the methods of treatment are the same for the
schools involved, an orthopedic surgeon can testify as an expert as to the
standard of care which must be exercised by a podiatrist. The California Court
of Appeals has addressed the analogous issue of whether a podiatrist can
testify as to the applicable standard of care of an orthopedic surgeon
performing foot surgery, holding that he can. The record revealed a familiarity
with the surgery and contained testimony that the fields overlapped.
There is, however, a line of authority excluding such testimony. The South
Carolina Court of Appeals has held that an orthopedic surgeon was not
competent to testify as to the applicable standard of care in a malpractice action
against a podiatrist. The record there revealed that the orthopedic surgeon had
never performed ambulatory foot surgery nor was he familiar with the surgical
procedure performed. Likewise, the North Carolina Court of Appeals has
excluded the testimony of an orthopedic surgeon on the applicable standard of
care in a malpractice action against a podiatrist. The record also revealed
unfamiliarity with the field of practice. The Illinois Supreme Court has considered
whether “a plaintiff may establish the standard of care a podiatrist owes a
patient by offering the testimony of a physician or surgeon, or another expert
other than a podiatrist.” The court held that “in order to testify as an expert on
the standard of care in a given school of medicine, the witness must be licensed
therein.” The dissent casts this as a mechanical and formalistic resolution of the
issue.
The decisions allowing and excluding expert testimony in this area generally
focus on the expert’s familiarity with the school of medicine and the procedures
involved. To resolve this issue in the context of this case requires an
examination of the testimony proffered to qualify Weil as an expert, in order to
determine whether he possessed a sufficient familiarity with the school of
medicine and the procedures involved.
In the absence of the jury, Weil was extensively examined regarding his
qualifications to testify as an expert. He testified that he has performed
hundreds of operations on the feet, that he was familiar with the surgical
procedure performed on the plaintiff’s feet, and that he was familiar with the
treatment, both conservatively and surgically, of keratosis and calluses upon the
feet. Further, he testified that he had worked with almost all of the podiatrists in
the New Haven area. They had referred patients to him for treatment and he had
referred patients to them, generally for conservative treatment, but occasionally
for surgical procedures performed in a hospital. He had observed and
performed operations where more than one head and neck of a metatarsal was
removed for neurological disorders of the feet. Here, the defendant podiatrist
removed the fifth metatarsal of the plaintiff’s left foot. In addition, the doctor
testified that he had performed implant operations and was familiar with
implants into the foot and toes, but had never performed an implant operation
on the toes. He stated that he was familiar with the standard of care applicable
to the treatment of keratosis and bunions and that the standard of care did not
change simply because a podiatrist rather than an orthopedic surgeon treated
the patient.
The defendant podiatrist testified that, in terms of foot surgery, orthopedic
surgeons and podiatric surgeons generally performed the same procedures. He
admitted that a certain medical text on surgery on the feet was authoritative.
Weil expressed a familiarity with that text insofar as it pertains to the plaintiff’s
preoperative condition and the surgical and conservative nonsurgical techniques
for the treatment of the plaintiff’s condition. Although Weil had never performed
or assisted in the surgical procedures involved in the treatment of the plaintiff’s
malady, this was so because he questioned the use of such procedures. The
extensive offer of proof discloses that the plaintiff’s expert had the requisite
familiarity with the particular school of medicine and the procedure involved to
substantiate that he had the necessary qualifications to give his opinion as to
the standard of care.
There is error, the judgment is set aside and a new trial is ordered. Copyright
2017 Health Administration Press
Submit Your Answer to the Following Discussion Questions:
- What might have been the practical effect for the practice of podiatry if the
decision in Marshall had been the opposite? - Do you believe it is fair to allied health professionals that they be judged by
the standards of physicians? Be sure to answer the question from all
stakeholder perspectives. - Might the evolving practice of assigning grades or scores based on
outcomes be a reasonable alternative here if the goal is inform and empower
consumers to make informed choices?