Bissett v. Renna

710 A.2d 404, 142 N.H. 788, 1998 N.H. LEXIS 28
CourtSupreme Court of New Hampshire
DecidedMay 19, 1998
DocketNo. 96-375
StatusPublished
Cited by12 cases

This text of 710 A.2d 404 (Bissett v. Renna) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bissett v. Renna, 710 A.2d 404, 142 N.H. 788, 1998 N.H. LEXIS 28 (N.H. 1998).

Opinion

HORTON, J.

The plaintiff, Joyce Bissett, executrix of the estate of Florence Merchant, brought a medical malpractice action against the defendant, Theodore Renna, M.D., seeking recovery for injuries resulting from the defendant’s alleged negligence in prescribing a certain drug to the decedent. The Superior Court {Lynn, J.) granted the defendant’s motion to dismiss on the grounds that the plaintiff failed to provide competent expert testimony. See RSA 507-E:2 (1997). We affirm.

The defendant is a board-certified ophthalmologist. In June 1988, he performed cataract surgery on Ms. Merchant. Shortly after the surgery, she developed an inflammation of the retina known as cystoid macula edema (CME). The defendant prescribed Feldene, a non-steroidal anti-inflammatory drug (NSAID), to treat Ms. Merchant’s eye inflammation.

In February 1991, Ms. Merchant filed this medical malpractice action, alleging that the defendant negligently prescribed Feldene. In August 1992, Ms. Merchant died, and her executrix was substituted as plaintiff. The plaintiff contended that the Feldene caused Ms. Merchant to experience severe gastrointestinal bleeding and to develop aplastic anemia, which then became leukemia and ultimately led to her death. The defendant moved to dismiss, arguing that the plaintiff failed to produce a qualified and competent expert witness to testify to the appropriate standard of care required of the defendant.

[790]*790At an initial hearing on the defendant’s motion to dismiss, the plaintiff revealed that she intended to offer expert testimony through a pharmacologist, Dr. David Kosegarten. The Superior Court (Lynn, J.) denied the defendant’s motion to dismiss but ordered a pretrial hearing to determine Dr. Kosegarten’s competency to testify as an expert witness. After the hearing, the Superior Court (Barry, J.) ruled that Dr. Kosegarten was not competent to testify as the plaintiff’s sole liability expert witness under RSA 507-E:2. Specifically, the court found:

1. [Dr. Kosegarten] is not a competent witness with regard to the standard of care required of the defendant.
2. He is not a competent witness capable of testifying to the standard of reasonable professional practice in the defendant’s profession at the time of the incident giving rise to this action;
3. He cannot testify that the [defendant] failed to act in accordance with such standard since he does not know what the standard is and, therefore;
4. He cannot testify that as a proximate result thereof, [Ms. Merchant] suffered injuries which would not have otherwise [] occurred.

At a hearing on the defendant’s renewed motion to dismiss, the plaintiff contended that she had sufficient evidence to reach the jury based on an article in the PHYSICIAN’S DESK REFERENCE (PDR) which indicated that the administration of Feldene to treat the plaintiff’s CME was an “off-label” use of the drug, i.e., a use that had not been approved by the Food and Drug Administration (FDA). The plaintiff asserted that the PDR entry conclusively shows that the defendant inappropriately prescribed and ineffectively managed Ms. Merchant’s use of Feldene, which caused her injuries. The plaintiff argued that the PDR established either evidence of the applicable standard of care required of the defendant or prima facie proof of the defendant’s breach of that standard.

On May 2, 1996, the Superior Court (Lynn, J.) dismissed the case. The court found that RSA 507-E:2 does not permit the PDR, absent expert testimony, to be used as prima facie proof of the standard of care required of the defendant in administering Feldene to Ms. Merchant. The court noted that while the PDR may be admissible when offered in conjunction with expert testimony, in light of Judge Barry’s determination that the plaintiff’s only liability witness is [791]*791not a competent expert witness, the court had no alternative but to grant the defendant’s motion to dismiss.

On appeal, the plaintiff argues that the trial court erred in ruling that Dr. Kosegarten is not competent to testify as an expert witness concerning the applicable standard of care. In addition, the plaintiff contends that RSA 507-E:2 permits the PDR, absent expert testimony, to serve as prima facie proof of the applicable standard of care. The plaintiff maintains that use of the PDR to establish the standard of care regarding the prescription of an off-label drug, either alone or in conjunction with Dr. Kosegarten’s testimony that a breach of that standard has occurred, is sufficient to shift the burden of proof to the defendant to justify his prescription of such drug.

RSA 507-E:2 governs the burden of proof in medical malpractice actions. The statute provides, in pertinent part:

I. In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or 'witnesses-.
(a) The standard of reasonable professional practice in the medical care provider’s profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

(Emphasis added.) The decision whether to qualify a witness as an expert is within the sound discretion of the trial court. See Chase v. Mary Hitchcock Mem. Hosp., 140 N.H. 509, 510, 668 A.2d 50, 52 (1995). We will not reverse such a decision unless the trial court clearly abused its discretion. See Mankoski v. Briley, 137 N.H. 308, 310, 627 A.2d 578, 579 (1993).

First, the plaintiff argues that a pharmacologist may competently testify as an expert witness concerning the standard of care required of a medical doctor in prescribing certain drugs. The defendant’s administration of Feldene to treat the plaintiff’s eye condition, however, is subject to the standard of care analysis [792]*792mandated by RSA 507-E:2. The statute requires the plaintiff to prove by competent expert testimony the standard of care required of the defendant at the time the medical care was rendered, that the defendant failed to act in accordance with such standard, and that as a proximate result, Ms. Merchant suffered injuries which she would not otherwise have sustained. See RSA 507-E:2.

The plaintiff’s proposed use of a pharmacologist, rather than a medical doctor, to testify to the standard of care requiréd of the defendant ophthalmologist contravenes the requirements of RSA 507-E:2. For example, Dr. Kosegarten testified at the pretrial hearing that he did not have a medical degree and had received no training in the médical fields of ophthalmology or hematology. He also acknowledged that he had no experience treating patients with CME, and that he had never encountered the disease prior to being retained as a consultant in this case. In addition, Dr.

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710 A.2d 404, 142 N.H. 788, 1998 N.H. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bissett-v-renna-nh-1998.