Following Petros A. Palandjian’s (decedent’s) death from gastric cancer, his son, as executor of his estate, and his widow filed claims for wrongful death, medical malpractice, and loss of consortium against the decedent’s internist, Gerald S. Foster, and radiologists, Kathleen A. McCarthy and Carol A. Hulka, claiming that they were negligent in failing to diagnose the decedent’s cancer at an earlier stage. After trial in the Superior Court, the jury found that none of the physicians had been negligent. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed the judgment in Foster’s fаvor, concluding that the trial judge had erred in excluding certain expert testimony related to the standard of care. Palandjian v. Foster,
1. Background. Gerald Foster, an internist, served as the decedent’s primary care physician from 1979 to 1995. In February, 1991, the decedent visited Foster complaining of severe abdominal pain at night. Foster prescribed Zantac to treat possible peptic ulcers and ordered an upper gastrointestinal series of X-rays (upper GI series) to identify any abnormalities of the stomach or esophagus. Foster also referred the decedent to a cardiologist to determine whether his symptoms were heart related. These tests did not reveal any explanation for the decedent’s abdominal pain, which Foster concluded most likely was caused by stress.
The decedent next saw Foster in January, 1993, for a routine physical examination; records do not indicate any reports of abdominal pain at that visit. However, the decedent returned to Foster’s office six months later complaining of digestive problems, including foul-smelling belching and the sensation of food sticking in his throat. Foster ordered another upper GI series, which again did not detect any abnormality that could explain these symptoms.
In April, 1994, the decedent visited Foster with similar complaints and severe heartburn. This time, Foster referred the decedent for an endoscopy, which revealed multiple gastric
Following his death, the decedent’s widow and son, as executor of his father’s estate, filed claims of wrongful death, medical malpractice, and loss of consortium, alleging that Foster was negligent in failing to detect the dеcedent’s gastric cancer sooner. Specifically, the plaintiffs maintained that the decedent’s gastric cancer could have been diagnosed and treated at a more curable stage if Foster had ordered an endoscopy in 1991 or 1993, after the inconclusive upper GI series. The plaintiffs also claimed that the radiologists who read the X-rays from the decedent’s upper GI series in 1991 and 1993 were negligent in failing to identify any abnormalities.
At the beginning of the trial, Foster, Hulka, and McCarthy (collectively, defendants) filed a motion in limine to exclude any referеnce to the fact that the decedent’s grandmother and aunt had died of gastric cancer, arguing that such information was inadmissible under Daubert v. Merrell Dow Pharms., Inc.,
At trial, the plaintiffs sоught to establish the standard of care
On redirect examination, counsel for the plaintiffs asked the expert about the significance of the decedent’s family history of gastric cancer. The defendants’ objection to this line of inquiry as beyond the scope of cross-examination was sustained. The plaintiffs later made an offer of proof that the expert, if permitted to testify, “would have opined that the fact that [the decedent’s] grandmother [and paternal aunt] had died of gastric cancer was a factor that should have given the internist a heightened sense of suspicion . . . . [T]o an internist, that family history should have increased the index of suspiciоn that [the decedent] was at an increased risk for having gastric cancer.”
2. Standard of review. The decision to exclude expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or other error of law. See Commonwealth v. Pike,
3. Discussion, a. Standard of care. To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient’s harm. See, e.g., Harlow v. Chin,
Establishing the applicable standard of care typically requires
b. Application of Daubert-Lanigan. In Daubert v. Merrell Dow Pharms., Inc.,
In Canavan’s Case,
Relying on the reasoning of Canavan’s Case, supra, Foster argues that Daubert-Lanigan should apply to medical expert testimony concerning the standard of care, just as it applies to medical opinions relating to diagnosis and treatment, to ensure that the judge admits only reliable expert opinions.
The plaintiffs argue that the judge improperly used Lanigan to evaluate whether the practice called for under the standard of care had been proved effective, reiterating that the standard of care is custom based and therefore need not be validated scientifically. They maintain that the purpose of Daubert-Lanigan is to screen new or untested scientific evidence to prevent the admission of “junk science,” and note that courts in at least two other jurisdictions have held that Daubert does not apply to testimony about the standard of care because it does not involve novel scientific evidence.
We agree with the plaintiffs that expert testimony concerning the standard of care generally need not be subject to a Daubert-Lanigan analysis. Such testimony is based on the expert’s knowledge of the care provided by other qualified physicians, not on scientific theory or research: “How physicians practice medicine is a fact, not an opinion derived from data or other scientific inquiry by employing a recognized methodology.”
The plaintiffs contend that the expert’s testimony regarding family history was not offered to prove a scientific fact (i.e., that a history of gastric cancer in second degree relatives actually increases one’s risk of cancer), but only to show that the average qualified internist would consider a family history of gastric cancer in second degree relatives to be significant. We do not agree with this characterization of the proffered testimony. In their proffer the plaintiffs stаted that Foster should have suspected that the decedent faced an increased risk of gastric cancer because of his family history.
Therefore, when the defendants challenged the reliability of the expert’s testimony concerning the decedent’s increased risk of gastric cancer, the judge properly asked the plaintiff for any “Daubert-type evidence” that would support the expert’s contention. See Kumho Tire Co. v. Carmichael,
The plaintiffs further argue that the judge misapplied Daubert-Lanigan, both by requiring that the plaintiffs support their
Finally, the plaintiffs claim that a 2003 study establishes that a history of gastric cancer in second degree relatives may increase a patient’s risk of developing the disease, thereby confirming that the proffered testimony should have been admitted because it is “the correct medical practice.” Even if this article does establish an increased risk of gastric cancer in second degree relatives, the plaintiffs’ argument overlooks that a “physician is held to the ‘standard of care and skill of the average member of the medical profession practicing his specialty’ at the time of the alleged negligence” (emphasis added). Brusard v. O’Toole,
4. Conclusion. The judgment of the Superior Court in favor of Foster is hereby affirmed.
So ordered.
Notes
During an endoscopic examination, a physician passes a flexible fiberoptic instrument through a patient’s mouth, esophagus, stomach, and into the small intestine, enabling the physician to view these body cavities in greater detail than an upper gastrointestinal series of X-rays (upper GI series) would allow.
First degree relatives are one’s parents, siblings, and children. Second degree relatives include one’s grandparents, grandchildren, aunts, uncles, nieces, nephews, and half-siblings.
This witness, a physician board certified in internal medicine and gastroenterology, had fourteen years of clinical experience involving the diagnosis and treatment of patients with gastric cancer, and the defendants did not object to his qualification as an expert.
The judge also treated the following portion of the plaintiffs’ supplemental answers to interrogatories as part of their proffer: “[The expert] will testify that [the decedent’s] family history of gastric cancer and his country of origin placed him at greater risk for gastric cancer and [the decedent’s] ongoing symptoms should have raised the suspicion of more serious disease.”
The plaintiffs’ counsel asked his expert: “[Biasеd upon your training, your education, your experience as an internist and as a gastroenterologist, do you have an opinion as to whether or not an internist practicing in the field of gastroenterology, following good medical practice, would have ordered, on the basis of those facts, a follow-up endoscopic examination?” The expert responded only by explaining the actions that he would have taken in the circumstances: “With a negative upper G.I. study and the persistence of symptoms, I would have gone to the next test, which is an endoscopic study,” and “since the tests were negative on two occasions, and yet the symptoms persisted, I would then proceed with a much more diagnostic study, namely endoscopy” (emphasis added). The essence of a custom-based standard of care, as discussed above, is the care the average qualified physician would provide in similar circumstances, not what the expert himself would have done. However, because the defendants did not object to this testimony at trial, and the issue was not raised by Foster on appeal, the opinion given by the рlaintiffs’ expert is not before this court.
Considering only the practices of qualified physicians, and incorporating “advances” in the medical profession, prevent the standard of care from falling below an acceptable level. See Brune v. Belinkoff,
Daubert v. Merrell Dow Pharms., Inc.,
Foster also cites two cases where Federal courts have concluded that Daubert applies to standard of care evidence in medical malpractiсe cases. See Sullivan v. United States Dep’t of the Navy,
See Regions Bank v. Hagaman,
Indeed, it is difficult to imagine how Daubert-Lanigan, with its emphasis on methodology, would apply to testimony concerning the standard of care. Because the standard of care is determined by the care that the average qualified physician would provide, it is “generally accepted” almost by definition. Moreover, the “methodology” employed by an expert testifying to the applicable standard of care will almost always be the same: the testimony will be based on the expert’s experience and education. The focus, then, is not truly on the “methodology” underlying the expеrt’s opinion, but on whether the expert’s qualifications create a foundation adequate to support the expert’s statement of the standard of care.
Although the plaintiffs argue that the excluded testimony was critical to establishing the standard of care, we note that the expert was allowed to testify to the applicable standard of care when he opined that he would have ordered endoscopies in 1991 and 1993. Moreover, the expert was permitted to testify that if endoscopies had been conducted in 1991 or 1993, these tests would have detected the decedent’s cancer when it was treatable. Thus, testimony about the standard of care (although not in the proper form) was admitted: all that was effectively excluded in the proffer, then, was the expert’s testimony about the increased risk of cancer associated with the decedent’s family history.
This is not to say that untested science never may be incorporated into the standard of care. For example, if the medical literature admittedly was unclear
Although a medical expert’s qualifications may provide an adequate basis for testimony about the applicable standard of care, an expert’s qualifications alone do not necessarily establish the reliability of testimony concerning other sрecialized knowledge, including increased risk. See Canavan’s Case,
The plaintiffs argue on appeal that the judge refused to permit their expert to testify about his experience treating patients with a history of gastric cancer in second degree relatives, suggesting that the expert’s personal observations and clinical experience, rather than the medical literature, may have been the basis for the proffered opinion concerning the decedent’s increased risk. Although observation and experience may be appropriate bases for medical expert opinions, see Canavan’s Case, supra at 313, the plaintiffs did not include this evidence in their proffer. Thus, the judge did not refuse to hear this testimony; it was simply never offered at trial.
The plaintiffs’ repeated argument that Foster did not present any evidence to contradict the proffered testimony are inapposite:' the burden is on the proponent of expert testimony to demonstrate its reliability, not on the opposing party to refute it. Canavan’s Case, supra at 314 (expert testimony is admissible if proponent can show that it is generally accepted or otherwise reliable to support relevant conclusion).