Gloria Vazquez's lawsuit against the orthopedic group she accused of leaving a pain pump catheter fragment in her shoulder might have ended differently if an expert witness had backed her accusations. Instead, a trial court dismissed the case after the witness, an orthopedic surgeon, blamed the breakage on the design of the catheter.

Ms. Vazquez received a pain pump after shoulder manipulation under anesthesia performed by a physician from Bethlehem, Pa.-based CHS Professional Practice. Upon removal of the pain pump by one of the group's physician assistants, a fragment of the catheter broke off and lodged in Ms. Vazquez's shoulder.

"She underwent a second minor procedure to have the piece removed," says CHS's attorney, Shawn Phillips. "There wasn't much in the way of damages."

During the ensuing trial, Ms. Vazquez's attorney, who could not be reached for comment, attempted to argue that the negligence of the physician assistant was self evident, negating the need for expert testimony. The attorney also argued that the catheter should have been presumed safe for use since it was FDA-approved.

The trial court, however, ruled that given the varying theories as to how or why the catheter broke, expert testimony was required to justify a lawsuit.

Mr. Phillips, on the other hand, called on expert witness Elliot Leitman, MD, a board-certified orthopedic surgeon. Dr. Leitman claimed that catheter fracture during removal is a known risk which can occur in the absence of negligence. "The shoulder joint is frequently distended with arthroscopic fluid or with traction applied to the upper right extremity," he testified, adding that plastic catheters can encounter resistance within the soft tissue of the shoulder or within the joint itself.

Based on his experience, Dr. Leitman told the court, "The breakage of an intra-articular catheter does not represent a deviation of acceptable medical practice and is more likely due to the design of the catheter itself."

Ms. Vazquez appealed the trial court's ruling, which was eventually upheld by a state superior court.

Daniel Cook