In a med mal trial’s battle of the experts, sometimes it’s what an expert doesn’t say that may swing a verdict. At trial against a California physician over his off-label use of a spinal implant, Dennis Ames cleared his client with a closing that turned the spotlight on what one expert never said.
Christina Avalos claims her chronic back pain stemmed from Dr. William Dobkin’s off-label use of Medtronic’s Infuse spinal implant during her lumbar surgery. Her attorneys sought more than $6 million in damages. Dobkin argued his use of the implant was appropriate and her pain was from a pre-existing condition. The 2018 trial was believed to be the first such case to make its way before a jury.
Key to the 14-day trial was whether Dobkin breached the standard of care by using the device, which had not been FDA-approved in lumbar surgeries. During his closing, Ames, of La Follette Johnson, reminded jurors that the defense expert, Dr. Sigurd Berven, an experieced orthopedic surgeon and department director at the University of California-San Francisco, concluded the implant's off-label use met the standard of care.
And while the plaintiff offered expert testimony that the standard of care was not met, Ames argued that that conclusion never came from the most qualified expert that the plaintiff put on the stand, Dr. Charles Rosen. Rosen, a professor of orthopedic surgery at the University of California-Irvine, testified concerning his treatment of Avalos after the Infuse had been implanted. But Ames said, the doctor never rendered an opinion on whether Dobkin's use of the implant met the standard of care.
“Where was Dr. Rosen on the standard of care?” Ames asked, highlighting the charge that jurors may distrust weaker evidence on an issue if a party could have, but did not, provide stronger evidence.
“Why do you think Dr. Rosen wasn’t asked, whether, in his opinion, Dr. Dobkin breached the standard of care?” Ames asked.
Jurors cleared Dobkin, finding his treatment met the standard of care and Avalos gave her informed consent for the procedure.
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