Melville v. Southward
791 P.2d 383 (1990)
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Rule of Law:
An expert witness from one school of medicine may testify as to the standard of care of another school of medicine only if a foundation is laid showing either that the expert is substantially familiar with the standard of care in the defendant's specialty, or that the standard of care for the procedure at issue is substantially identical for both specialties.
Facts:
- In July 1980, Lulu Melville consulted Dr. Stanton C. Southward, a podiatrist, for an ingrown toenail.
- On August 14, 1980, Dr. Southward performed a metatarsal osteotomy on Melville's right foot in his office to alleviate her discomfort.
- Following the surgery, Dr. Southward instructed Melville to soak her foot in a vinegar and water solution and wrapped it in a Unna boot.
- Approximately one week later, Dr. Southward examined the foot, expressed concern, and provided Melville with an antibiotic.
- On August 26, 1980, Melville reported to Dr. Southward that her foot was swollen, red, and painful; he advised her to increase the frequency of the soaks.
- On August 29, 1980, Melville noticed fluid draining from the surgical site and sought an appointment with her family physician, Dr. McGarry.
- Dr. McGarry diagnosed a severe infection at the surgical site and referred Melville to Dr. Michael Barnard, an orthopedic surgeon.
- Dr. Barnard examined Melville on October 17, 1980, and diagnosed her with osteomyelitis (a bone infection) which he believed was caused by the surgery performed by Dr. Southward.
Procedural Posture:
- Lulu Melville sued Dr. Stanton C. Southward for medical malpractice in the district court of Fremont County (trial court).
- At a jury trial, the court admitted the testimony of Melville's expert, an orthopedic surgeon, over Dr. Southward's objection that a proper foundation had not been laid.
- The trial court denied Dr. Southward's motion for a directed verdict.
- The jury found in favor of Melville and awarded her $56,000 in damages.
- Dr. Southward (appellant) appealed the judgment to the Colorado Court of Appeals (intermediate appellate court).
- The Court of Appeals reversed the trial court's judgment, holding the expert testimony was inadmissible, and ordered Melville's complaint dismissed with prejudice.
- The Colorado Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
May an expert witness from one school of medicine (orthopedic surgery) testify regarding the standard of care applicable to a defendant from another school of medicine (podiatry) without an evidentiary foundation establishing the expert's familiarity with the defendant's specialty or the substantial similarity of the standards of care between the two schools?
Opinions:
Majority - Chief Justice Quinn
No. An expert witness from one school of medicine may not testify about the standard of care of another school unless a proper foundation is established. To establish such a foundation, the proponent of the testimony must show either (1) that the expert witness is substantially familiar with the standard of care applicable to the defendant’s specialty, or (2) that the standard of care for the specific procedure or condition is substantially identical for both specialties. In this case, Melville failed to lay this necessary foundation for her expert, Dr. Barnard. Dr. Barnard, an orthopedic surgeon, explicitly testified that he was unfamiliar with the standards of podiatric foot surgery and podiatric literature. Furthermore, Melville presented no evidence that the standard of care for performing a metatarsal osteotomy or its post-operative care was substantially identical for orthopedic surgeons and podiatrists. Therefore, the trial court erred in admitting Dr. Barnard's testimony. However, because the trial court's error prevented the plaintiff from attempting to lay a proper foundation, the appropriate remedy is a new trial rather than a dismissal of the complaint.
Analysis:
This case establishes a clear, flexible framework for the admissibility of expert testimony across different schools of medicine in Colorado. It rejects a rigid rule that would bar such testimony outright, instead focusing on the actual knowledge of the expert and the similarities between the professions for the specific procedure at issue. This decision provides a crucial roadmap for litigants, requiring them to affirmatively establish a foundation of either expert familiarity or identical standards. The ruling balances the principle that a professional should be judged by the standards of their own field with the practical need for plaintiffs to find qualified experts, especially in overlapping or highly specialized areas of medicine.
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