Do Medical Consults Require a Duty to Caution?

In an unusual case in Washington state, the plaintiff’s medical expert witness failed to persuade the court that a Department of Veteran Affairs primary care physician had breached his duty of care, which led to a post-surgery infection that required the amputation of the plaintiff’s leg.

In Brotherton v. U.S.,[1] the plaintiff sued his VA primary care physician for failing to provide a warning during a consult with the surgeon who was to perform surgery on the plaintiff’s foot. The plaintiff had broken his ankle 30 years prior. The doctor treating him at that time improperly fused the plaintiff’s ankle, significantly inhibiting the plaintiff’s mobility.

The plaintiff, who also suffered from uncontrolled diabetes, sought surgery to correct the alignment of his foot. His primary care physician, who was aware of the plaintiff’s disease, referred him to a podiatrist, who then recommended an orthopedic surgeon outside the VA and the procedure was scheduled. However, the plaintiff developed a toe ulcer and infection as a result of his diabetes, which delayed the surgery for several months.

Once the infection had cleared, the plaintiff notified his physician that the surgery was going ahead. Uncontrolled diabetes can increase the risk for surgery-site infections, and the plaintiff developed a post-operation infection, which required his leg to be amputated below the knee.

The plaintiff brought suit against his physician, arguing the doctor had breached his duty of care by failing to warn the surgeon about the inherent risks in operating on someone with uncontrolled diabetes. During the trial, the plaintiff argued that his physician should have alerted the surgeon to the plaintiff’s increased susceptibility to post-surgery infections. Both the physician and surgeon argued that the standard of care they routinely employ rarely involves consultations between PCPs and surgeons. The plaintiff’s expert witness, the chief medical officer for a hospital, testified that physicians should employ an “’aspirational’ standard of care involving a consult,”[2] even though the witness was neither taught, practices, nor teaches, that standard of care. The court was unswayed by the expert testimony and ruled in favor of the physician.[3]

What transpired here was a complete failure on the part of the plaintiff’s expert witness to correctly define a doctor’s duty of care. The plaintiff’s expert witness was unable to explicitly testify that defendant breached the standard duty of care and made quite the stretch to suggest that such a duty was “aspirational.” In reality, the duty of care is what a “reasonable” physician would do under similar circumstances, not what all doctors should “aspire” to do. If the expert could not state that to a reasonable degree of medical probability, then the expert failed to define a breach of the standard of care.  Absent breach – the most fundamental element of negligence – the case was irretrievably lost.

This case also highlights the importance of fully understanding the scope, depth, and nuance of an expert’s opinion prior to putting them on the stand, and the mission-critical requirement to fully prepare and expert before testimony.

If you are engaged in medical negligence litigation, Elite Medical Experts can provide your legal team with leading university healthcare professionals who will meet your case-specific needs.

[1] Brotherton v. U.S., 2:2017cv00098 (E.D. Wash. May 28, 2019).

[2] Salvatore, C., “VA Doctor Wins Bench Trial over Veteran’s Leg Amputation,” (May 30, 2019), available at

[3] “But Judge Bastian ruled Tuesday that Sim’s duty of care ‘did not require Dr. Sim to caution plaintiff or Dr. Barrow against having the surgery performed or to de-authorize the VA’s referral to Dr. Barrow.’” Id.