14/04/08 (USA):
Parents Try To Sue Expert Who Changed His Mind
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Thomas and Karol Pace sued anaesthesiologist Stephen Shuput, MD, after their daughter died following a relatively straightforward breast augmentation procedure. The suit was based upon the standard of care given to their daughter and, crucially, his decision to discharge her from hospital.
The Paces' Defense team had instructed the services on an expert, anaesthesiologist Barry N. Swerdlow, MD, who had made a deposition without first seeing the deposition of Dr Shuput.
However, he later received a copy of the deposition and, upon its perusal, amended his deposition at pre-trial to say that he thought Dr. Shuput's care and his decision to discharge the Paces' daughter, was within the proper standard of care.
Needless to say, this had the potential to have a major impact upon the proceedings and, upon application by Dr Shuput, the court threw out the lawsuit, despite requests by the Paces to allow a further expert to be instructed.
Mr and Mrs Pace then apparently decided not to appeal this decision but filed suit against Dr Swerdlow, alleging malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress. They were effectively saying that his change of testimony directly resulted in their case being dismissed.
In March 2006 the U.S District Court for Utah Came down in favor of Dr Swerdlow, who had said that his change of opinion was not the major cause for the earlier case being dismissed. However, this ruling was later overturned on appeal by the Paces, with the appeals court ruling that if the Paces' allegations proved to be well-founded there may well be enough evidence for the lower court to find that the change of opinion did indeed result in the case being dismissed. In other words - the lower court acted prematurely.
In remitting the case back to the lower court, the appeals court concluded that matters for consideration had to firstly be the question of expert immunity and secondly the various allegations made by the Paces - the appeals court did not consider this latter question.
We await the finding of the District Court with interest, as although other federal jurisdictions have in certain circumstances not afforded experts immunity, Dr Swerdlow's attorneys appear confident that the Utah court will protect him from the claim.
© X-Pro 2008
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