Expert’s Flawed Testimony Leads to Revival of Malpractice Case

(CN) – The Virginia Court of Appeals revived a medical-malpractice suit stemming from the death of a child during a tonsillectomy, concluding that expert testimony at the original trial had no basis in fact.

As recounted in the April 13 ruling, 5-year-old Adam Toraish suffered from severe obstructive sleep apnea and was taken to Dr. James Lee, a board-certified otolaryngologist, for treatment.

Lee had Toraish participated in a sleep study, then recommended the child undergo tonsillectomy and adenoidectomy surgery.

Lee performed the surgery without complications, and afterward Toraish was monitored by nurses and anesthesiologists until he awoke.

He was then discharged with instructions to take prescribed pain medication every four hours.

His mother, Mariam Toraish, gave her son pain medication as instructed and laid him down for nap. Thirty minutes later, she found him unresponsive. He was rushed to the hospital where he was pronounced dead.

As autopsy was performed and the cause of death was listed as “cardiac arrhythmia of unknown etiology.”

Toraish’s parents filed a medical malpractice case, and during the ensuing trial, Lee’s defense team presented Dr. Simeon Boyd, a board-certified pediatric geneticist, as an expert witness on genetics and on Adam’s cause of death.

During the trial, Lee said at the time he recommended the procedure, he was unaware that Toraish’s parents were first cousins and that they had had two other children who had died due to genetic defects. He said if he had known the family history, he never would have performed the procedures on Adam Toraish.

Boyd testified that after the reviewing the case, he concluded Toraish’s death was caused by the same genetic issues that killed his older siblings. He opined with a “high” degree of medical certainty that Adam died of “cardiac arrest due to Brugada syndrome.”

The Toraishs objected to Boyd’s testimony, but Fairfax County Circuit Court Judge Brett Kassabian allowed it to be admitted and the jury ultimately found in favor of Dr. Lee and his practice. The Toraishs appealed.

On review, Justice William Mims noted that other experts for both the Toraish and Lee had agreed that respiratory compromise would have led to cardiac arrhythmia and could have caused Adam Toraish’s death.

The autopsy also left respiratory compromise open as a possibility.

But in Dr. Boyd, Mims found a purported expert whose diagnosis effectively precluded respiratory compromise as the cause of death, was founded upon an assumption that was not established during the trial.

Therefore, Mims said, “the circuit court abused its discretion by admitting it into evidence.”

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