Home Health & Hospice Week

Testimony rules swing in Gentiva's favor.

A legal technicality has kept Gentiva Health Services Inc. out of an argument over its quality of care in an infant patient's death.

In a medical malpractice lawsuit filed in February 2001, Mischelle and Michael Musser alleged the actions of a licensed practical nurse in the Fort Wayne, IN office of Gentiva (then known as Olsten Health Services) breached the standard of care in their son Maverick's August 1999 death.

Maverick was born prematurely at 22 weeks, causing him to have a chronic lung disease requiring the use of a continuous positive airway pressure (CPAP) device and other monitors, according to the Seventh Circuit U.S. Court of Appeals' Jan. 28, 2004 decision in Musser v. Gentiva.

Gentiva had two registered nurses and a licensed practical nurse furnishing care to Maverick round-the-clock. While the LPN was on duty, the tracheostomy tube linking Maverick to the CPAP fell out and the LPN, Dawn Kinzer, didn't realize it until he was "in distress," the decision says.

Kinzer called to Mischelle Musser -- also an RN -- for help, then unsuccessfully attempted to reinsert the tube. Musser reinserted a different tube and both women attempted CPR on Maverick. Emergency personnel arrived and took 19-month-old Maverick to the hospital, where he was pronounced dead, the decision recounts.

The Mussers allege in their malpractice suit filed in February 2001 that Kinzer was sick and on medication during Maverick's death; Kinzer didn't have the apnea monitor or pulse oximeter attached to Maverick; and Mischelle Musser had to correct Kinzer's CPR technique. In short, Kinzer was inattentive prior to Maverick's death and incompetent in her attempts to revive him, the Mussers charge.

However, in preparing for a trial, the Mus-sers' attorneys committed an oversight. They disclosed medical professionals as witnesses as required by the Federal Rules of Civil Procedure that govern federal lawsuits. But they failed to disclose any of them as expert witnesses by the deadline.

For violation of the expert witness rule (R. 26), Gentiva asked the district court to exclude the medical professionals' expert testimony because they weren't disclosed as expert witnesses at deposition. And because the Mussers then had no expert testimony, Gentiva asked the court to dismiss the case altogether for lack of ability to show Kinzer's breach of duty without that testimony.

The court agreed, and dismissed the case in January 2003.

The Mussers appealed the decision, arguing that the Federal Rule requiring disclosure of the expert witnesses as well as regular ones was a "pointless formality" since Gentiva knew the witnesses.

"Formal disclosure of experts is not pointless," retorted the Seventh Circuit in its decision. "Gentiva should not be made to assume that each witness disclosed by the Mussers could be an expert witness at trial."

The Mussers had no good reason for not presenting their expert witnesses on time, and therefore the appeals court upheld the lower court's ruling to strike all their expert testimony. Without expert testimony, the appeals court upheld the ruling in favor of Gentiva, dismissing the case.

Testimony Rules Not A Minor Loophole 

Gentiva didn't get off the hook with some obscure legal technicality, legal experts stress. The Federal Rule requiring disclosure of expert witnesses is well known and clearly established, points out attorney Virginia Caudill with Gilliland & Caudill in Indianapolis. "If you want to play in Federal Court, you must follow the Federal Rules -- it's that simple," Caudill tells Eli.

And proving Kinzer and Gentiva were at fault wasn't just common sense. "The issue of liability was not one of 'common knowledge,' such as leaving a surgical sponge in a patient, that did not require expert testimony to prove," notes Burtonsville, MD-based health care attorney Elizabeth Hogue. "The timely naming of experts and the use of expert witnesses to prove their case were crucial aspects."

The plaintiffs asked the appeals court to rule that the mistake didn't cause harm to Gentiva, and to allow the expert testimony to be admitted. But upholding the Federal Rule "didn't break any new ground on the malpractice side," says attorney Richard Prebil with Foley & Lardner in Chicago.

The case tested the limits of sanctions for violating the discovery rules, Prebil adds. Exclusion of the expert testimony, and the resulting dismissal, were within those limits.

Deriding the Federal Rules probably didn't help the plaintiff's case, Caudill says. "The Court was not at all amused at Plaintiff's counsel calling the Federal Rules 'pointless' -- and justifiably upheld the lower court's decision to make a point."

Gentiva declined to comment.