Plaintiff in med mal action must present expert testimony explicitly establishing standard of care in med mal context; cannot rely only on expert testimony in original workers’ comp case that complained surgeries were not medically necessary.

The plaintiff was injured at work, herniating discs in her spine. She underwent an anterior cervical discectomy and fusion procedure performed by the defendant, Dr. Salkind. Following the procedure, the plaintiff developed a stutter and pain in her throat when swallowing. In addition to workers’ compensation claims, the plaintiff initiated a medical malpractice suit and retained Dr. Gopez, a Board-certified expert in neurosurgery. Dr. Gopez examined the plaintiff twice, but solely for the purposes of litigating workers’ compensation claims and providing an opinion on whether the surgeries performed by Dr. Salkind were medically necessary. At the time of the medical malpractice trial, Dr. Salkind filed a motion in limine to preclude the testimony of Dr. Gopez because his opinions did not relate to the standard of care applicable in a medical malpractice action. The motion was granted, and the plaintiff’s complaint was dismissed for failure to present expert testimony on the applicable standard of care. The plaintiff appealed, and the Superior Court affirmed, reasoning that, although Dr. Gopez opined that the spinal fusion procedure was not medically necessary or causally related to the work injury, it was done in the workers’ compensation context and no expert testimony was provided by the plaintiff establishing the standard of care that would apply in a medical malpractice action. Because of this, the plaintiff failed to meet her burden of proof.

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