Med-Mal Plaintiffs’ Suit Against Their Own Expert Survives Appeal
Posted Apr 7, 2008 8:33 AM CDT
By Debra Cassens Weiss
A federal appeals court has refused to dismiss a lawsuit by medical malpractice plaintiffs who claim their expert witness breached his duty to them when he changed his mind.
The parents of a woman who died after breast augmentation surgery claim their expert, anesthesiologist Barry Swerdlow, was the proximate cause of the dismissal of their case against the physician who treated their daughter, American Medical News reports. Swerdlow changed his position after a January 2005 deposition in which he acknowledged he had not seen the deposition of the defendant. After Swerdlow obtained and read the deposition, he changed his own deposition testimony to say the defendant’s treatment was within the standard of care.
The plaintiffs, Thomas and Karol Pace, accuse Swerdlow of 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.
The Denver-based 10th U.S. Circuit Court of Appeals ruled last month (PDF) that the couple had alleged enough facts to establish that Swerdlow was the proximate cause of the dismissal. The court remanded the case for a determination whether Swerdlow was protected by witness immunity.
A dissenter said the suit should have been dismissed because the plaintiffs did not allege that Swerdlow’s change of heart was motivated by something other than a professional change of opinion.