Circumstantial evidence can be key in malpractice cases

By Mark McGrath

As we covered in our previous commentary addressing surgical malpractice cases, North Carolina courts have historically been reluctant to apply res ipsa loquitor in these cases. As a result, injured patients have attempted to ground malpractice cases arising from perioperative injuries using circumstantial evidence. Circumstantial evidence cases typically involve expert witness testimony showing that because the patient entered surgery with no injury to a given body part but emerged from surgery with an injury there, some negligent act was the likely cause. In the typical case, the expert would then opine, based on all available evidence, that the injury was caused by some specific negligent act that occurred during surgery.

The courts have concluded that circumstantial evidence may be used to establish negligence, even when the evidence fails to support a res ipsa claim (Howie v. Walsh (1985)). As with res ipsa claims, meticulous pleading and careful assembly of proof is essential in a surgical malpractice case.

Even in circumstantial evidence cases, however, the courts have been somewhat hesitant to allow intraoperative injury cases to go to a jury. In Campbell v. Duke (2010), plaintiff emerged from shoulder surgery with ulnar neuropathy in his left arm. He alleged that the injury occurred due to negligent padding, positioning and monitoring of the arm during the procedure. His expert testified in support of this contention, opining that improper positioning was the proximate cause of the nerve injury. During his deposition, the expert conceded that his opinion was based on the fact that plaintiff had no ulnar nerve injury before the surgery but awoke from the procedure with an unexplained injury. Considering this testimony, the court held that the expert was merely presuming the mechanism and etiology of the nerve injury. Because the court regarded the expert’s opinion as mere speculation, the court affirmed summary judgment.

A plaintiff attempting to establish malpractice through circumstantial evidence also will have to distinguish her case from the Court of Appeals decision in Kenyon v. Gehrig (2007). In Kenyon, plaintiff underwent surgery and awoke with a postoperative femoral neuropathy. Defendants moved for summary judgment by introducing evidence that they met the standard of care, and that femoral neuropathy was a known risk of the procedure which can occur in the absence of negligence. The proof advanced by plaintiff tended to show that defendants’ improper use of a retractor was the cause of the nerve injury. However, plaintiff’s experts also conceded that their opinions were based upon the mere occurrence of the injury itself. The court concluded that, although plaintiff had come forward with a theory of how the injury occurred, the opinions of her experts were mere speculation.

The Court of Appeals applied a different analysis in Williams v. Humphreys (2013). While it is an unpublished opinion, Williams offers a framework for avoiding the harsh results in Kenyon and Campbell. In Williams, plaintiff awakened from surgery with an unanticipated nerve injury. The Williams court concluded that, unlike the experts in Kenyon, the experts in Williams relied upon the nature of the injury to identify the precise negligence that resulted in the injury — incorrect positioning of plaintiff during the surgery. The court found that plaintiff’s experts considered the nature of the injury to identify possible causes of the injury, conducted a review of medical literature relevant to the injury, eliminated unlikely causes, and reached opinions that the likely cause was improper positioning of plaintiff during surgery. The court found that the methodology employed by plaintiff’s experts to establish negligence and causation was a basic differential diagnosis, a well-established technique employed by every physician; the court found this to be the product of the scientific method and the opposite of speculation. In conclusion, the court held that, unlike the evidence in Kenyon and Campbell, the expert testimony in Williams identified the specific mechanisms of the injury and its cause and could in no sense be deemed speculative and insufficient.

The Williams opinion was recently interpreted by the Court of Appeals in McDonald v. Saini (2020). In McDonald, the court found that the opinions rendered by plaintiff’s expert in a surgical malpractice case were the product of mere speculation. The court highlighted the fact that, unlike the experts in Williams, the experts in McDonald failed to consider the nature of the injury to identify possible causes of the injury, to review relevant medical literature and to eliminate other potential causes of the injury. In short, the differential diagnosis analysis conducted by the experts in Williams was not undertaken by the experts in McDonald.

Conclusion

There is no escaping the fact that surgical malpractice cases present challenges for plaintiffs’ counsel. While res ipsa loquitor might provide a basis for recovery in the narrow categories recognized by the North Carolina courts, plaintiffs will have to establish their cases using circumstantial evidence in most cases. To clear the hurdles presented by cases such as Kenyon and Campbell, experts should be prepared to present their analysis in the form of a differential diagnosis. In a surgical malpractice case, experts should identify possible causes of the injury at issue, conduct a review of relevant medical literature, eliminate causes found to be unsupported by the evidence, and undertake other efforts to synthesize the evidence and present it in a coherent and compelling narrative. As in any medical malpractice case, thorough and thoughtful preparation of experts is the key to success.

Mark McGrath is a lawyer with Paynter Law in Hillsborough, where he practices personal injury and medical malpractice litigation.