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Bissett v. Renna5/19/1998
The plaintiff, Joyce Bissett, executrix of the estate of Florence Merchant, brought a medical malpractice action against the defendant, Theodore Renna, M.D., seeking recovery for injuries resulting from the defendant's alleged negligence in prescribing a certain drug to the decedent. The Superior Court (Lynn, J.) granted the defendant's motion to dismiss on the grounds that the plaintiff failed to provide competent expert testimony. See RSA 507-E:2 (1997). We affirm.
The defendant is a board-certified ophthalmologist. In June 1988, he performed cataract surgery on Ms. Merchant. Shortly after the surgery, she developed an inflammation of the retina known as cystoid macula edema (CME). The defendant prescribed Feldene, a non-steroidal anti-inflammatory drug (NSAID), to treat Ms. Merchant's eye inflammation.
In February 1991, Ms. Merchant filed this medical malpractice action, alleging that the defendant negligently prescribed Feldene. In August 1992, Ms. Merchant died, and her executrix was substituted as plaintiff. The plaintiff contended that the Feldene caused Ms. Merchant to experience severe gastrointestinal bleeding and to develop aplastic anemia, which then became leukemia and ultimately led to her death. The defendant moved to dismiss, arguing that the plaintiff failed to produce a qualified and competent expert witness to testify to the appropriate standard of care required of the defendant.
At an initial hearing on the defendant's motion to dismiss, the plaintiff revealed that she intended to offer expert testimony through a pharmacologist, Dr. David Kosegarten. The Superior Court (Lynn, J.) denied the defendant's motion to dismiss but ordered a pretrial hearing to determine Dr. Kosegarten's competency to testify as an expert witness. After the hearing, the Superior Court (Barry, J.) ruled that Dr. Kosegarten was not competent to testify as the plaintiff's sole liability expert witness under RSA 507-E:2. Specifically, the court found:
1. [Dr. Kosegarten] is not a competent witness with regard to the standard of care required of the defendant.
2. He is not a competent witness capable of testifying to the standard of reasonable professional practice in the defendant's profession at the time of the incident giving rise to this action;
3. He cannot testify that the [defendant] failed to act in accordance with such standard since he does not know what the standard is and, therefore;
4. He cannot testify that as a proximate result thereof, [Ms. Merchant] suffered injuries which would not have otherwise occurred.
At a hearing on the defendant's renewed motion to dismiss, the plaintiff contended that she had sufficient evidence to reach the jury based on an article in the Physician's Desk Reference (PDR) which indicated that the administration of Feldene to treat the plaintiff's CME was an "off-label" use of the drug, i.e., a use that had not been approved by the Food and Drug Administration (FDA). The plaintiff asserted that the PDR entry conclusively shows that the defendant inappropriately prescribed and ineffectively managed Ms. Merchant's use of Feldene, which caused her injuries. The plaintiff argued that the PDR established either evidence of the applicable standard of care required of the defendant or prima facie proof of the defendant's breach of that standard.
On May 2, 1996, the Superior Court (Lynn, J.) dismissed the case. The court found that RSA 507-E:2 does not permit the PDR, absent expert testimony, to be used as prima facie proof of the standard of care required of the defendant in administering Feldene to Ms. Merchant. The court noted that while the PDR may be admissible wh
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