Cardiology Expert Allowed to Opine on the Failure to Diagnose

This is a Federal Tort Claims Act ("FTCA") action filed by Ernest Newcombe ("Plaintiff") against the United States of America ("Defendant").

Plaintiff asserted that Defendant, through medical providers Family Nurse Practitioner Christine Couperus-Mashewske and Nurse Practitioner Ernie Cougler at Community Health Center of the North Country ("CHCNC") (which is a federally supported health center eligible for medical malpractice coverage under the FTCA), provided him negligent medical care by failing to identify and treat a blood infection caused by bacterial endocarditis that ultimately resulted in damage to the mitral valve of his heart, which required surgical replacement of that valve.

Both sides have moved to exclude testimony from the other side's expert witness. Defendant argued that the testimony of Plaintiff's expert, Dr. Bruce D. Charash, should be excluded because he is not qualified to opine on the relevant standard of care applicable to Plaintiff's medical malpractice claim. Similarly, Plaintiff argued that the opinions of Defendant's expert, Dr. John Stuart Hostetler, should be excluded because Hostetler is not qualified to render an opinion regarding the applicable standard of care for either primary care providers or emergency medicine providers.

Infectious Disease Expert Witness

Dr. John Stuart Hostetler is board certified in the specialty of infectious disease and internal medicine with over thirty years of clinical experience primarily focused on the practice of infectious diseases.

Want to know more about the challenges John Stuart Hostetler has faced? Get the full details with our Challenge Study report.

Cardiology Expert Witness

Bruce David Charash is board certified in internal medicine by the American Board of Internal Medicine. Charash is board certified by the AIBM in cardiology. He has been in private practice in the field of internal medicine and cardiology since 2006.

Get the full story on challenges to Bruce Charash’s expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

Bruce David Charash

Defendant focuses on the fact that Charash is board certified in cardiology and practices in that field, but appears to completely ignore the evidence showing that Charash is also board certified in internal medicine and also practices in the capacity of a primary care physician for approximately 50% of his private practice patients.

Charash further testified at his deposition that "infectious disease is a subspecialty of internal medicine" and that he is "an expert at certain degrees of infectious disease management, and I know when I need to call in help from a subspecialist." Further, Charash understood his role as "talking about the responsibility of primary care providers in terms of their management of a person who has a positive--has growth in a blood culture," and he testified that, during his earlier career of being a "full-time hospital person," he treated "probably a hundreds [sic] of people with positive blood cultures" and in his private practice, he has had "one case a year or less," an estimated "10 to 15 people" that have required a blood culture to be taken.

This experience is sufficient to render Charash qualified to opine regarding the standard of care applicable to a primary care physician related to the diagnosis and management of bacteremia.

Defendant argued that Charash's opinions are unreliable because they are not supported by the evidence in the record. However, Defendant's arguments in this respect are premised on the theory of its own expert witness, Hostetler. The fact that Charash disagreed with Hostetler regarding the standard of care that is applicable to CHCNC does not render his opinion unreliable.

Defendant also oversimplifies matters in asserting that, because Charash acknowledges that blood infections like the one Plaintiff had often cannot be appropriately managed in an outpatient primary care setting, he and Hostetler have actually opined the same standard of care and therefore there is no conflicting expert testimony to prevent summary judgment. While Charash does indeed testify that bacteremia and endocarditis require specialized care or management in a hospital or by an infectious disease specialist, the standard of care that is contained within his opinions is unequivocally not the same as the standard of care opined by Hostetler. Hostelter essentially opines that there is no standard of care applicable to CHCNC as a primary care provider related to treatment of such an infection because the duty belongs to GHED, who ordered his blood cultures and had the resources to treat that infection. By contrast, Charash opines that a primary care physician such as CHCNC still has a duty to address the needs of its patients who present to them with a blood infection by either managing that care itself or referring them for appropriate care and management if CHCNC cannot itself provide that care and management.

These opinions are very clearly not expounding the same standard of care, and therefore a question exists that can only be resolved by a factfinder's consideration of those competing opinions.

Nor is the Court convinced by Defendant's arguments that Charash's opinion is materially inconsistent with his deposition testimony. Defendant's characterization of Charash's opinion as being that CHCNC was required to personally manage and treat Plaintiff's blood infection is not an accurate assessment of Charash's explicit statements in his expert reports (quoted previously) that CHCNC could have also met its duty by referring Plaintiff's care to a specialist if it was beyond their ability or capacity to treat personally at CHCNC. Such opinion is consistent with his deposition testimony. Additionally, even if inconsistencies do exist between Charash's expert report and his deposition, those would go to the consideration of what weight should properly be afforded to his opinions, not their admissibility.

For all of the above reasons, the Court denied the Defendant's motion to exclude the testimony of Charash.

John Stuart Hostetler

Because Plaintiff filed his motion late without good cause, the Court found that it should be denied as untimely. Nevertheless, even if the Court were to consider that motion on its merits, it would deny Plaintiff's request to exclude Hostetler's opinion.

Hostetler, as a board certified internal medicine physician with a subspecialty in infectious diseases and experience and knowledge relating to the management and treatment of positive blood cultures, is qualified to render opinions in this case, regardless of whether he specifically practices in a primary care setting.

Further, Plaintiff's arguments as to why Hostetler is unqualified and/or his opinions lack a proper foundation or sufficient reliability go toward the weight to which his opinions might be entitled rather than their admissibility.

For the above reasons, the Court denied Plaintiff's motion to exclude the testimony of Hostetler.

Held

• The Court denied the Defendant's motion to exclude Dr. Bruce D. Charash's opinion.

• The Court denied the Plaintiff's motion to exclude Dr. John Stuart Hostetler's opinion.

Key Takeaway

To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.

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