Court upholds trial judge's decision to admit expert opinion evidence from doctors who did not utilize procedure that was allegedly negligent

Lisa Albro sued Steven L. Drayer and his professional corporation, after Drayer's surgery on her foot was unsuccessful, became infected and ultimately left her severely compromised.  Albro's subsequent treater told her that the procedure adopted by Drayer was inappropriate.  He testified that the Chrisman-Snook procedure used by the defendant was the wrong procedure and that her surgery did not meet the standard of care.

The Defendant called "several" other doctors to testify, none of whom used the Chrisman-Snook procedure.  Nevertheless, they claimed that they had learned about the procedure during medical training and that it was not a breach of the standard of care to use it.  The offered the opinion that the "risks and uncertainties" of medical practice were such that a "failed procedure" was not malpractice and that Ms. Albro's experts were mistaken in arguing that Drayer was negligent.  The jury accepted their testimony and awarded a verdict to Drayer.

Albro appealed.  The Appeals Court ruled that even though these experts did not use the procedure in their practice, they were still qualified to evaluate the Defendant's use of the procedure and whether his treatment met the standard of care.  This outcome was surprising given that cases in the past have appeared to require that victim-plaintiffs endorse and offer testimony only from a specialist physician who is thoroughly familiar with and currently using the techniques and procedures under review.  The appelate judges agreed with Albro's attorneys that one of the Defendant's experts should not have been allowed to claim, based on a textbook reference, that "one-third of practitioners would be guilty of malpractice if the Plaintiff's experts are correct.  Nevertheless, they deemed this unwarranted and objectionable statement to be insufficient to overturn the jury verdict.  It was not "inconsistent with substantial justice."