Court says expert's qualifications don't add up in dismissing lawsuit

By Carrie Salls | Mar 17, 2017

PHILADELPHIA – The dismissal of a medical negligence lawsuit that hinged on orders related to the allowance of expert testimony was upheld on March 3 by the state Superior Court.  

According to the Superior Court opinion, Lisa Ball sued Holy Redeemer Health System and Drs. Gemma Rozmus and Gilbert Tausch amid claims that the defendants were negligent because they did not properly anticipate and/or control her reaction to Narcan and because they failed to properly restrain her after administering the drug, increasing the risk that she would suffer physical injury.

Ball submitted to the Court of Common Pleas of Montgomery County a standard-of-care expert report prepared by Dr. Ira Mehlman. However, Tausch asked the court to bar the expert report. As a result, the only part of the report the trial court allowed was related to the physical restraint of Ball in the hospital’s emergency room.

According to the Superior Court ruling, the defendants objected to Mehlman’s qualifications following his videotaped trial testimony in 2015.

“Notably, in contrast to his curriculum vitae, Dr. Mehlman’s testimony revealed that he had not practiced clinically since the latter portion of 2010 and that he was no longer board certified in emergency medicine,” the Superior Court opinion said. “Further, although Dr. Mehlman testified that he was scheduled to give several lectures in the future, he acknowledged that he had not been actively involved in teaching at a medical school since late 2010.”

The defendants filed a new motion to preclude Mehlman’s testimony. This time, the trial court granted the motion, and Ball’s complaint was dismissed with prejudice.

On appeal of the dismissal, Ball asked the Superior Court to decide whether the trial court was wrong to impose “the most severe of sanctions of dismissing the underlying action without due consideration of lesser sanctions,” as well as whether the lower court was in error when it denied a motion to bar any evidence of or in reference to her alleged drug abuse.

“(Ball) had ample time during seven years of litigation in which to find another standard-of-care expert or to appropriately supplement Dr. Mehlman’s curriculum vitae and/or testimony,” the Superior Court said in its ruling, adding that further delay would have been "prejudicial and unnecessary.”

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