Arizona Court of Appeals Division One holds that a plaintiff in a medical malpractice case may cross-examine a standard-of-care expert about the expert’s personal practices.

This appeal arose out of the denial of a motion for a new trial filed by the Plaintiff patient.  Jaynes brought a medical malpractice claim against Defendants Dr. Goldblatt and Dr. McConnell after she was diagnosed in late 2010 with late-stage cancer, from which doctors predict she will die.  Jaynes had seen both Goldblatt and McConnell in 2007 after an exam revealed a lesion. Jaynes was referred first to Goldblatt, who then referred Jaynes to McConnell for a more extensive exam.  McConnell conducted an ultrasound in May 2007 and a second ultrasound in September 2007.  Although McConnell noted that the lesion was “relatively unchanged,” expert testimony at trial indicated that the lesion had, in fact, changed between the ultrasounds.  McConnell did not talk to Goldblatt about the second ultrasound and did not see Jaynes again.  A jury awarded Jaynes $3.7 million in damages, but allocated 0% fault to McConnell.  Jaynes moved for a new trial against McConnell arguing that the trial court erred in excluding certain expert testimony.  The trial court denied the motion and this appeal followed. 

The Court of Appeals reversed and remanded for a new trial against McConnell, holding that the trial court erroneously excluded “personal practices testimony from McConnell’s expert witness.”  McConnell’s expert had testified in his deposition that “it was his personal practice to follow up with a referring physician after observing significant changes in an ultrasound.”  The trial court did not allow Jaynes to elicit testimony on that topic at trial.  The Court held that the trial court erred in excluding the personal practice testimony of McConnell’s expert because it “was relevant to assist the jury in its factually intensive determination of the relevant standard of care,” and “pertained to [the expert’s] credibility as an expert witness by suggesting that his personal practices differ from the standard of care he espoused.” 

The Court also rejected McConnell’s argument that the error was harmless.  The Court noted that it could not “predict how the jury would have reacted to the knowledge that [the expert’s] own personal practice in a similar case is to call the referring physician.”  McConnell also argued that the jury could have concluded that her failure to discuss the second ultrasound with Goldblatt “did not proximately cause any harm.”  The Court disagreed, finding that “[a] reasonable jury, armed with all the admissible evidence, could find that McConnell contributed to Jaynes’s injuries if she did not accurately report the results of the second [ultrasound] and did not call Goldblatt to discuss those results, assuming the jury decided that the standard of care required such a call.”  If McConnell had called Goldblatt, the Court continued, she “may have changed his conclusion and his subsequent advice to Jaynes,” and a jury could therefore “have found that McConnell’s failure to call Goldblatt after the second ultrasound was a proximate cause of some harm to Jaynes.” 

Presiding Judge Gemmill authored the opinion of the Court, in which Presiding Judge Jones and Judge Kessler joined.