The United States District Court for the District of New Mexico (“New Mexico federal court”) on August 8, 2017 granted summary judgment to the New Mexico medical malpractice defendants in its Memorandum Opinion and Order that stated that the plaintiff had the burden to prove through expert testimony that the defendant emergency room physician breached his duty owed to a patient who died from intracerebral hemorrhage after she was improperly administered anticoagulant therapy (tPA).
The New Mexico federal court determined that the plaintiff’s expert’s report did not allege that the defendant emergency room physician fell below the standard of care for a physician, and therefore the plaintiff cannot prove a breach of duty.
The New Mexico Medical Malpractice Allegations
The decedent was admitted to the defendant hospital’s emergency room (“ER”) during the afternoon of December 11, 2012, after experiencing stroke-like symptoms at home. The defendant emergency room physician attended to the decedent in the emergency room.
The emergency room physician performed an initial neurological examination to determine if the decedent should receive tPA, which is a medication given to potential stroke victims in order to break up blood clots. At the time of his initial examination, the defendant emergency room physician planned to give the decedent tPA.
The defendant hospital’s stroke policy in effect at the time stated that when a “Code Stroke” was called, the pharmacy would prepare the tPA. Although once a “Code Stroke” was initiated, tPA was prepared by the pharmacy and taken to the ER, it would not be given to a patient without a doctor’s order.
A “Code Stroke” was called for the decedent and the pharmacy prepared the tPA per protocol. Once the “Code Stroke” was initiated, a hospital pharmacist spoke to the defendant emergency room physician by telephone who told her that the patient’s condition seemed to be improving but since the tPA had already been mixed, it could be brought down to the ER for the defendant to have if he needed it (per hospital policy, the tPA would have been delivered to the ER even without the defendant asking for it to be delivered). The tPA was delivered to the ER from the pharmacy.
The decedent underwent a CT scan in the ER that showed that she had not experienced a stroke and her stroke symptoms resolved within two hours after her arrival in the ER. The defendant emergency room physician examined the decedent after her CT scan, found that her condition had improved, and determined that marked improvement is one of the contraindications to giving tPA. He did not administer tPA to the decedent.
After several hours in the ER, the decedent was admitted to the telemetry unit for observation at 3:30 p.m. on December 11, 2012. The telemetry unit did not use the same electronic system as the ER, so all orders for medications from the ER were supposed to be automatically deleted once an individual transfers to a different unit of the hospital. However, in this case tPA was sent up to the telemetry unit when the decedent was admitted.
In the telemetry unit, an order for tPA was listed on the decedent’s Medication Administration Record (“MAR”), which is used in the Telemetry unit but not the ER. It is the admitting physician’s job to ensure that a patient in the telemetry unit has the correct medication.
At 11:30 p.m. on December 11, 2012, a telemetry nurse administered tPA to the decedent without looking for a doctor’s order, although it was hospital protocol to do so, and without consulting with a doctor or a charge nurse, and he knew tPA was only supposed to be given in the ER within three hours of the onset of stroke symptoms. After the decedent was given the tPA, she fell into a coma and eventually died. The Autopsy Report stated that the decedent “died of intracerebral hemorrhage due to inadvertent administration of anticoagulant therapy [tPA].”
The Plaintiff’s Expert’s Reports
The plaintiff’s expert’s original report regarding the defendant emergency room physician opined that the hospital stroke protocol for the initiation of tPA and the initial physician order for the preparation of the tPA were appropriate but that the order for tPA that was initiated in the emergency department was never cancelled, which is below the standard of care.
The expert later prepared an updated report in which he opined that the hospital stroke protocol for the initiation of a code stroke, including the tPA preparation, was appropriate, and that after the defendant emergency room physician determined the patient was no longer a candidate for tPA therapy, the onus was on him to assure that the protocol for its administration was clearly terminated, concluding that the order for tPA that was initiated in the emergency department was never cancelled definitively, ultimately a responsibility of the treating physician, which is below the standard of care.
The New Mexico medical malpractice defendants moved to strike the plaintiff’s expert’s updated report in its entirety, contending that the report should be excluded because the report was untimely and introduces new opinions. The plaintiff argued that after the preparation of the original expert report, new information was discovered through deposition testimony, which required the supplementation of the original report because it was no longer correct (the defendant emergency room physician’s role in ordering the tPA was not clear until deposition testimony taken after the original expert report was completed) and the supplemented report more accurately recognize the sequence of events, including that the tPA was never definitively cancelled (““[t]he order for TPA that was initiated in the ER was never cancelled definitively, ultimately a responsibility of the treating physician, which is below the standard of care”).
The New Mexico federal court stated that the plaintiff’s expert’s original expert report finds fault generally with the ER that the tPA was not cancelled while the updated report places responsibility on the emergency room physician for not cancelling the tPA. The New Mexico federal court held that the updated expert report is not a proper supplementation because there was no error in his original report and he did not correct misinformation in his conclusion. Instead, the expert offers an entirely new and previously undisclosed basis for the opinion, which is contrary to requirements of Rule 26 in that his original expert report did not contain a complete statement of all the opinions to be expressed and the basis and reasons.
The New Mexico federal court stated that because the updated expert report is a rebuttal intended solely to contradict or rebut evidence on the same subject matter identified by another party, it must be disclosed within 30 days after the other party’s disclosure. FED. R. CIV. P. 26(a)(2)(D)(ii). Any supplement to an expert report, including additions or changes to information, must be disclosed by the time the party’s pretrial disclosures are due.
The New Mexico federal court stated that the plaintiff therefore had thirty days after the disclosure of the defendants’ expert’s report that it was rebutting, which deadline the plaintiff failed to meet and the plaintiff’s updated expert report was therefore untimely.
The New Mexico federal court cited the Tenth Circuit that has identified four factors to determine if a failure to disclose was substantially justified or harmless: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.
The New Mexico federal court stated that the plaintiff’s updated expert report alleges a new theory in this case, i.e., that the defendant emergency room physician’s actions fell below the standard of care because he did not cancel the tPA. The New Mexico federal court found that the defendants are prejudiced by the untimeliness of the supplemental expert report and that this factor weights in favor of finding the untimely disclosure is not substantially justified or harmless.
The New Mexico federal court also found that the second factor weighs in favor of finding the untimely report is not substantially justified or harmless, and that the third factor tips in favor of finding the untimely report is not substantially justified or harmless (the supplemental expert report has to some extent disrupted the court’s case management).
The New Mexico federal court agreed that although the plaintiff delayed in filing the supplemental expert report, there was no direct evidence of the plaintiff’s bad faith or willfulness. Therefore, the fourth factor weighs in favor of finding the report is substantially justified or harmless.
The New Mexico federal court stated that considering the totality of the factors, it found that the report is not substantially justified or harmless and therefore granted the defendants’ Motion to Strike. The New Mexico federal court also granted summary judgment to the emergency room physician because the plaintiff’s expert’s report does not allege that the defendant emergency room physician fell below the standard of care for a physician and therefore the plaintiff cannot prove a breach of duty and the plaintiff’s negligence claim against the defendant emergency room physician fails.
Source Faure v. Community Health Systems, Inc., No. 14cv00559 KG/KBM
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