After a Georgia hand surgeon reattached the wrong fingertips to a patient’s hand during surgery, an unaffiliated medical expert secured by the plaintiff testified the doctor’s conduct violated the standard of care.
Now defense counsel for Dr. Robert Howell of Georgia Hand Shoulder Elbow in Atlanta are challenging whether Washington, D.C.-based surgeon Dr. Michael Morris had been qualified to testify as an expert, leading both sides to argue their stance before the Georgia Court of Appeals.
After plaintiff Corey Cochran had the tips of three of his fingers amputated during an industrial accident, he received emergency surgery by Howell at Piedmont Hospital.
But when post-surgery fingerprints revealed Howell had reattached two of Cochran’s fingertips to the wrong fingers, Cochran sued the surgeon for medical malpractice and negligence.
‘Which Finger Tip Goes Where’
On behalf of Cochran, plaintiff counsel Charles Brant of Colom and Brant Law in Atlanta called Morris, a hand reconstructionist and plastic surgeon, to serve as an expert in the case before Fulton County Superior Court Judge Eric K. Dunaway.
But Howell’s defense counsel comprised of David Hanson, Paul Weathington and Elizabeth “Liza” Linginfelter of the Weathington Firm in Atlanta challenged the expert’s qualifications, seeking an appellate review.
“Dr. Morris testified that it was a violation of the standard of care to reattach the distal end of the pointer finger to the middle finger and the middle finger to the pointer finger, in other words to translocate the tips of the fingers,” Hanson argued before an intermediate appellate panel made up of Presiding Judge Anne E. Barnes, Judge Trenton Brown and Judge Kenneth Hodges III Tuesday.
“The question in this case is whether Dr. Morris is qualified under Georgia’s law, under Rule 702, to testify as an expert, whether he has the requisite experience,” Hanson argued. “He is undoubtedly qualified as a hand surgeon. He is undoubtedly qualified to talk about if arteries had been misattached or the nerves had been misattached in the fingertips, but he is not qualified to talk about the specific thing that he criticizes, i.e. ‘which finger tip goes where.’”
Hanson highlighted testimony from the medical expert acknowledging he had not done any multidigit finger replantations in the five years preceding Howell’s alleged medical malpractice involving Cochran’s surgery.
Instead, Hanson argued the plaintiff’s expert had done “maybe four multidigit finger replantations throughout his entire career.”
‘All You Have Are Just the Ends’
When the appellate panel questioned, “Does he really need an expert to opine ‘attaching the wrong finger on the wrong finger’ is a breach of the standard of care?” Hanson answered with a question of his own.
“The question is, ‘How do you make that determination intraoperatively?’” Hanson said. “‘What do you do to figure out which tip goes where, because all you have are just the ends.’”
Hanson argued that, because “fingers are often intentionally placed in different locations when you’re trying to reconstruct the hand,” “the question isn’t really, ‘should you put it back where it came from?’ The question is, ‘how do you determine where it goes?’ And that is a question that only comes up in a multidigit replantation case.”
Appellant counsel contended that, during deposition, the medical expert failed to provide a basis for his determination that Howell had violated the standard of care for otherwise successfully reattaching two of Cochran’s three amputated fingertips—but to the wrong fingers.
“All of this goes back to the fundamental question, which is, ‘how is this surgeon, Dr. Howell, supposed to make this determination intraoperatively when he is trying to replant the digits?,” Hanson argued. “The bottom line here is that the expert who is critical of him hasn’t made that determination intraoperatively. He does not know what the standard is for making that determination intraoperatively, and so he’s not qualified under Georgia law to criticize Dr. Howell for his decision intraoperatively to determine which digit it is that goes where.”
‘Fingers Were Marked’
Once his argument clock started, appellee attorney Charles Brant wasted no time challenging the appellant’s stance. Brant argued Cochran’s amputated fingertips had been marked by nurses “under [Howell’s] control and direction” to indicate which digit they should have been reattached to, information he said opposing counsel “left out.”
“The fingers were marked pre-operation,” Brant argued. “They were incorrectly put on the plaintiff’s hand.”
Brant argued that the medical expert had testified Howell’s replantation of Cochran’s fingertips to the wrong fingers constituted malpractice, but that the expert did not need to conduct the same multidigit replantation surgery to be qualified as an expert in the case.
“The record is very clear that you don’t have to do exactly what you’re criticizing,” Brant argued. “You have to have familiarization. You have to have knowledge about what it is that an individual is doing.”
When asked by the appellate panel whether the expert had spoken “intelligently about what he would have done differently” during his deposition, Brant replied Morris had.
“He actually did a scenario where he talked about how you view the fingers in preoperation to make sure you’re attaching them to the correct digits,” Brant replied. “He was asked that question by opposing counsel, and he was able to explain what he had done in previous situations differently and what he would have done differently in this case.”
On rebuttal, Hanson argued a preoperative photo in the record showing “a marking on one of the fingertips” had not been qualified.
“It’s not clear what that marking is,” Hanson argued. “When asked in his deposition, ‘what the markings were’ [and] ‘where the markings came from,’ Dr. Howell responded that he didn’t know and that he thought maybe the nurses had marked them so that they can keep the fingers straight.”