Johnson v. Keiper

                                        672

       Argued and submitted November 8, 2019, reversed and remanded
                             January 27, 2021


                     Delmer L. JOHNSON,
                       Plaintiff-Appellant,
                                 v.
                   Glenn KEIPER, Jr., M. D.;
          Keiperspine, PC, an Oregon corporation; and
             Spine Surgery Center of Eugene, LLC,
              an Oregon limited liability company,
                    Defendants-Respondents.
                  Lane County Circuit Court
                     17CV08365; A167924
                                    

     In this appeal of a medical malpractice action, plaintiff alleges that defendants’ negligence in performing spinal-fusion surgery and providing post-surgical diagnostics and care led to “foot drop” in his left foot. Plaintiff assigns
error to the trial court’s (1) ruling that plaintiff’s expert witness, a neurosurgeon,
was not qualified to testify about defendants’ post-surgical standard of care and
(2) grant of defendants’ directed verdict motion on the basis that plaintiff had not
proven that defendants’ alleged negligence caused plaintiff’s condition because
plaintiff’s expert could not testify to the degree of harm caused by defendants’
negligence. Held: Because plaintiff’s expert witness’s experience made him well
situated to understand plaintiff’s condition and the steps that were necessary
to care for plaintiff after his surgery, he was qualified to testify about plaintiff’s
post-surgical care allegations. Also, the proof of the injury caused by defendants’
negligence was provided with as much certainty as the circumstances permitted,
and the plaintiff therefore provided proof of the injury caused by defendants’ negligence with sufficient certainty for plaintiff’s claim to reach the jury.
    Reversed and remanded.



   R. Curtis Conover, Judge.
   Gary M. Bullock argued the cause for appellant. Also on
the briefs was Gary M. Bullock and Associates, P.C.
   Hillary A. Taylor argued the cause for respondents. Also
on the brief was Keating Jones Hughes, P.C.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   ARMSTRONG, P. J.
   Reversed and remanded.
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        ARMSTRONG, P. J.
          This is a medical malpractice action in which plaintiff alleges that defendants’ negligence in performing spinal-fusion surgery and providing post-surgical diagnostics and care led to “foot drop” in his left foot, which is the
loss of strength necessary to raise the foot. The trial court
granted defendants a directed verdict at trial on all of plaintiff’s claims, and plaintiff appeals the general judgment. In
four assignments of error, plaintiff contends that the trial
court erred in denying his motion to amend his complaint;
in excluding testimony by two of his experts—Dr. Dietrich
and Dr. Taylor—on the ground that they were not qualified to testify about defendants’ post-surgical standard of
care; and in granting the directed verdict. We reject without
written discussion plaintiff’s assignments of error concerning the motion to amend the complaint and the exclusion of
Taylor’s testimony. However, on the assignments of error on
Dietrich’s testimony and the directed verdict, we agree with
plaintiff and therefore reverse and remand.
         Because we are reviewing both the trial court’s
ruling on a directed verdict and the evidentiary question of
Dietrich’s qualifications to testify, we present the facts that
apply to each ruling differently. On the directed verdict in
favor of defendants, we present the facts in a manner that
is most favorable to plaintiff, drawing all reasonable inferences in his favor from the evidence. On the evidentiary ruling, we present the record that the court had before it when
making its ruling. See Trees v. Ordonez, 

,

 (2013) (in reviewing a trial court’s grant of a
directed verdict in a defendant’s favor, the facts are stated
“in the light most favorable to plaintiff, drawing every reasonable inference from the evidence” in plaintiff’s favor);
State v. Eatinger, 

, 632, 

 (2019)
(“When we review a trial court’s evidentiary ruling, we do so
in light of the record that was before the court at the time of
the ruling.”).
                    I. BACKGROUND
       Plaintiff began receiving treatment in 2013 from
defendants—Dr. Keiper and associated entities Keiperspine,
674                                                 Johnson v. Keiper

PC and Spine Surgery Center of Eugene, LLC—for back
pain. Defendants diagnosed lumbar stenosis (a narrowing of
the spine that puts pressure on nerves) of the L3-4 and L4-5
vertebrae and sciatica (compression of nerve roots causing
back pain). Over time, defendants tried several treatments
and surgeries for plaintiff—which included microlaminotomies, a medial facetectomy, and foraminotomies (all of
which involve removing portions of the vertebrae to relieve
pressure on the spinal nerves) as well as epidural steroid
injections—but they were not successful in resolving plaintiff’s pain. In 2015, defendants recommended a spinal fusion
and the removal of two cysts, which had developed since
plaintiff had started his treatment. Plaintiff considered his
pain to be intolerable, and he decided to go through with the
proposed procedures.
         On May 27, 2015, Keiper performed on plaintiff
L4-5 microlaminotomies and medial facetectomies, resection of bilateral synovial cysts, and, particularly relevant
to this appeal, an operation that fused two of plaintiff’s vertebrae with a titanium cage and bilateral pedicle screws.1
Unlike a surgery in which a single incision is made, Keiper
operates through two incisions on the sides of the vertebrae.
Keiper monitored the surgery using fluoroscopy (X-rays
taken during the course of surgery), neuromonitoring, and
EMG reports. The pedicle screws were placed by guidewires
and a device known as a Jamshidi. During the May 27 surgery, the neuromonitoring alarm went off, and Keiper repositioned the placement of a pedicle screw. He did not note the
alarm or the redirection of the pedicle screw in the operative
or discharge reports.
         When plaintiff awoke from surgery, he did not have
the strength to raise his left foot. Plaintiff was told that he
had “foot drop,” and Peterson, Keiper’s physician assistant,
reassured plaintiff that the foot drop would soon get better.
Plaintiff was given Decadron—a strong anti-inflammatory
steroid that rapidly reduces swelling. Plaintiff did not
remember noticing improvement after he was given the
intravenous steroid, but Keiper noted by chart that there

    1
      All subsequent references to “the surgery” refer to the May 27, 2015,
surgery.
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was improvement. Defendants never told plaintiff that the
neuromonitoring alarm had gone off or that there was any
issue with the placement of the pedicle screw.
         After the surgery, plaintiff made several visits to
defendants’ office over the next three months to address his
foot drop, which had not improved. In the course of those
visits, Keiper and Peterson examined plaintiff and ordered
X-rays, magnetic resonance imaging (MRI), an electromyelogram (EMG), and nerve conduction velocity testing. Plaintiff
was continually told by defendants that there was nothing
wrong with the placement of the fusion hardware. Indeed,
according to defendants, the placement of the pedicle screws
was “excellent,” “perfectly placed,” and “textbook.” In defendants’ view, in light of plaintiff’s continued sciatica and foot
drop (at 2/5 strength), it was likely that the affected “nerve
root is dysfunctional due to manipulation during surgery.”
In August, plaintiff was insistent in asking if there was
more testing to be done, because he did not understand what
was causing his condition. At that point, plaintiff’s foot was
“just dead.” Defendants ordered a CT myelogram, and, on
August 13, defendants told plaintiff that the pedicle screws
needed to be removed and replaced with a clamp but did not
explain to him that the CT myelogram showed that the L4
pedicle screw was breaching the L4 vertebra, possibly to the
extent that it was affecting the nerve root.
         Plaintiff’s final appointment with defendants was
on August 31. Afterwards, plaintiff decided to get a second
opinion. Plaintiff went to another neurosurgeon at OHSU
on September 15, but it was not until sometime in October
that OHSU received the CT myelogram. The neurosurgeon
at OHSU explained to plaintiff that the CT myelogram
showed that a pedicle screw had breached the L4 vertebra,
and the neurosurgeon recommended removing the screw.
On December 9, the earliest that surgery could be scheduled, OHSU surgeons removed the left L4 pedicle screw and
rod. Plaintiff’s foot drop did not improve.
         Plaintiff brought this medical malpractice action
against defendants, alleging six specifications of negligence, of which the following four are relevant to the issues
on appeal: defendants failed to perform the May 27, 2015,
676                                                      Johnson v. Keiper

surgery skillfully by incorrectly placing the L4 pedicle
screw (allegation (a)); defendants failed to obtain and record
appropriate imaging and nerve root monitoring studies to
document whether the screw was misplaced and whether
the nerve root was damaged at the time of the May 27, 2015,
surgery (allegation (b)); defendants failed to inform the
patient of the malpositioned screw and fragmented bone and
their probable causation of his sciatica and foot drop following the May 27, 2015, surgery, leading to an unreasonable
delay in removal of the offending screw (allegation (c)); and
defendants failed to provide personal and skilled aftercare
following surgery by delegating to a physician assistant key
decision-making during follow-up visits after surgery (allegation (f)).2
         At trial, Dietrich, a neurosurgeon who was limited
by the court about the negligence allegations about which
he was qualified to testify, testified about the standard of
care concerning allegation (b)—the failure to order appropriate imaging tests in light of plaintiff’s foot-drop symptom
that presented immediately after surgery—and whether the
position of the L4 pedicle screw was in a position to impinge
on the L4 nerve. Based on his review of the CT myelogram
and plaintiff’s foot drop, Dietrich had no doubt that the L4
pedicle screw had breached the medial canal, that it “certainly” affected the L4 nerve, and that it was likely that the
L4 pedicle screw affected the L5 nerve root. In sum, with
the requisite degree of medical certainty, Dietrich testified
that the pedicle screw was responsible for damaging the
L4 and L5 nerve roots. He further testified that, the sooner
that the source of an injury to a nerve root is removed, the
more likely that the injury will abate.
        In Dietrich’s opinion, not only should defendants
have ordered imaging tests when plaintiff’s foot drop presented immediately after the May 27 surgery, the tests that
were ordered—an X-ray on June 9 and an MRI on June 10—
were inadequate to definitively determine whether the
pedicle screw was breaching the medial canal. If the foot

     2
       Not at issue on appeal are the allegations that defendants were not truthful
about what caused plaintiff’s foot drop and that defendants failed to warn plaintiff that foot drop was a risk of the spinal-fusion surgery.
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drop was due to manipulation during surgery, it would be
expected that the foot drop would persist for two or three
days and then improve gradually as swelling receded. The
MRI that was taken was not adequate to ascertain the position of the pedicle screws, mainly because magnetic artifact
distorts the image, preventing accurate interpretation of
whether the pedicle has been breached by any of the screws.
The CT myelogram definitively showed the pedicle-screw
breach, and it was below the standard of care to wait until
August 13 to ascertain the cause of the foot drop.
        Dietrich concluded his testimony by stating that
defendants’ failure to obtain appropriate imaging studies at
the time of plaintiff’s surgery to ascertain whether a pedicle
screw was misplaced and was damaging the nerve root fell
below the standard of care. Further, plaintiff’s nerve damage was permanent, and, it was “more likely than not” that,
had the breached pedicle screw been removed earlier than it
was, plaintiff would have had some improvement of his foot
drop.
         At the close of trial, defendants moved for a directed
verdict on all claims. Concerning allegation (b), defendants
asserted that our decision in Chouinard v. Health Ventures,

, 

 (2002), stands for the proposition that, to prove causation, expert testimony is required
to define the extent or degree of an alleged injury and that,
without such testimony, a jury would have to impermissibly
speculate about the injury that had occurred and would not
have a measure upon which to decide the amount of damages to award. In defendants’ view, because Dietrich testified
that plaintiff would probably have had some improvement in
his foot drop had defendants diagnosed and addressed the
malpositioned screw earlier, but Dietrich could not provide
more specificity than that about the effect of defendants’
negligence, plaintiff had failed to provide expert testimony
that would establish causation of his injury.
         Plaintiff disputed defendants’ understanding of
Chouinard and argued that there was no evidence in
Chouinard that the defendants’ negligence had caused the
plaintiff’s injuries whereas, here, Dietrich had provided evidence sufficient to establish causation and damages. The
678                                        Johnson v. Keiper

trial court agreed with defendants and granted a directed
verdict.
                       II. ANALYSIS
A.    Directed Verdict: Causation
         A trial court decision to grant a directed verdict
against a plaintiff’s claim is reviewed for legal error, and
the grant of such a verdict is appropriate only when the
defendant is entitled to judgment as a matter of law. Miller
v. Columbia County, 

, 

(2016), rev den, 

 (2017). That is, a directed verdict
is appropriate only in the exceptional case where reasonable
people could draw only one inference and that inference is
that defendant was not liable. Hall v. State of Oregon, 

, 

 (1979), aff’d, 

, 

 (1980). Consequently, the evidence is viewed in the
light most favorable to the plaintiff, as the nonmoving party,
affording the plaintiff every reasonable inference that can
be drawn from it. Wheeler v. LaViolette, 

,

 (1994).
           The elements of a claim for medical malpractice
include: (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) harm that is measurable in
damages; and (4) a causal link between the breach and the
harm. Rustvold v. Taylor, 

, 

(2000). On appeal, plaintiff’s challenge to the directed verdict concerns the last element—causation—and the parties
reprise their arguments about the import of Chouinard and
its bearing on causation. Consequently, our task is to determine whether plaintiff’s expert testimony had to establish
the degree of harm caused by the malpositioned pedicle
screw to prove causation. We begin that task by discussing
Chouinard.
        In Chouinard, the plaintiff, who had reported that
she was listing to one side and felt disoriented, underwent
a CT scan. The defendant radiologist who read the scan
did not see any abnormality on it. The plaintiff’s symptoms worsened, and she experienced other severe symptoms to the point that she could neither work nor care for
her children. Four months later, the plaintiff underwent
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an MRI scan, and that scan revealed the presence of a
three-centimeter tumor at the base of her brain. The tumor
was malignant and was mostly removed by surgery. 

. The plaintiff brought a medical malpractice action against the defendants and alleged that
the defendants’ failure to diagnose the tumor had caused
or aggravated various physical and emotional problems
that the plaintiff had experienced during the four-month
delay between the CT scan and the surgery, and she sought
pain-and-suffering damages for the period that her brain
tumor had gone undiagnosed. 

. At trial, none of
the doctors who testified could say to a reasonable medical
probability that the undiagnosed tumor had caused plaintiff’s physical problems. 

. Rather, the doctors
testified to the nature of the tumor and that the plaintiff’s
symptoms could have been caused by other conditions,
such as multiple sclerosis, stress, or an inner-ear infection.

. The defendants successfully moved for a directed
verdict on the ground that the plaintiff had failed to provide any expert testimony that the defendants’ failure to
diagnose the tumor had caused the plaintiff’s symptoms.

.
         On appeal, the plaintiff did not dispute that no
expert had testified to a reasonable medical probability
that the tumor had caused her symptoms. 

 at 512 (citing
Cleland v. Wilcox, 

, 

 (1975),
for the general rule that “a plaintiff in a medical malpractice case must offer expert testimony that, to a reasonable
medical probability, the alleged breach of the standard of
care caused the plaintiff’s injuries”). In the plaintiff’s view,
however, tumors and their symptoms are a matter of common knowledge, and, therefore, the evidence was sufficient
to permit the jury to infer causation even in the absence
of expert testimony. Id. at 513. We disagreed. The issue
whether the tumor had caused the plaintiff’s nausea, headaches, and vertigo was a complex medical question, given
that the plaintiff’s symptoms could have been caused by
other conditions, particularly in light of the plaintiff’s long
history of migraines. Consequently, to prevent mere speculation on the part of the jury about the cause of the plaintiff’s symptoms, expert testimony was required to “bridge
680                                          Johnson v. Keiper

that gap” between the complex relationship of the tumor and
the plaintiff’s symptoms. Id.

         Turning to this case, plaintiff acknowledges that
the placement of the pedicle screw and its relationship to his
foot drop is complex and requires expert testimony to bridge
the gap in a jury’s understanding. Unlike the circumstances
of Chouinard, however, plaintiff contends that Dietrich did
testify to a reasonable medical probability that, had defendants diagnosed and addressed earlier the malpositioned
pedicle screw, plaintiff would have recovered some of his foot
strength. Plaintiff is correct in that respect; this case is different from Chouinard insofar as the issue in this case is not
whether a jury could infer causation in the absence of expert
testimony. Chouinard, however, does not resolve whether an
expert must testify about the degree of injury caused by a
negligent act to provide expert testimony sufficient to establish causation.

         In Oregon, when we refer to the “causation” element, we ordinarily mean “causation-in-fact” or “but-for”
causation. Watson v. Meltzer, 

, 

 (2011), rev den, 

 (2012) (citing Oregon Steel
Mills, Inc. v. Coopers & Lybrand, LLP, 

, 

 (2004)). That is, a plaintiff must prove causation in a
negligence action by establishing that “but for the negligence
of the defendant, the plaintiff would not have suffered the
harm that is the subject of the claim.” 

 (citing Joshi v.
Providence Health System, 

, 

 (2005), aff’d, 

, 149 3d 1164 (2006) (“ ‘Causein-fact’ also has a well-defined legal meaning: it generally
requires evidence of a reasonable probability that, but for
the defendant’s negligence, the plaintiff would not have been
harmed.”)). See also Horn v. National Hospital Association,

, 

 (1942) (to prove causation, the
plaintiff had to “show that competent action would have
been substituted for negligent inaction, and that there was a
reasonable probability that the subsequent ailments would
have been less if the substitution had been made”). In one
respect, Dietrich’s testimony appears to satisfy that but-for
meaning: But for defendants’ failure to diagnose and address
the position of the pedicle screw, plaintiff would not have as
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severe a foot drop as he does. In another respect, however,
because Dietrich did not quantify or delineate the degree of
the foot drop caused by defendants’ failure to timely diagnose and address the pedicle screw’s positioning, there is
not expert evidence on the degree of the injury caused by
defendants’ negligence.

          The Supreme Court has held, however, that certainty about the degree of harm is not necessarily required
to prove causation. In Hansen v. Bussman, 

,

 (1976), the plaintiff was born with congenital
hypothyroidism, which is a rare disease in which the thyroid gland does not function normally. If it is treated within
three months of birth, the disease may cause little or no
intellectual disability. 

. The plaintiff’s hypothyroidism, however, was left undiagnosed and untreated at an
early age, and the plaintiff suffered substantial intellectual
disability. 

. The plaintiff provided testimony that,
if congenital hypothyroidism is treated earlier in an infant’s
life, the odds are better that the infant’s IQ will be within
the normal range. 

. At trial, the defendant moved
for a nonsuit and a directed verdict, which were denied.

. On appeal, the defendant argued that there was
no evidence of how much intellectual disability had resulted
from the failure to timely diagnose and treat the plaintiff’s
condition and that recovery for negligence cannot rest on
speculation. 

. The Supreme Court, in rejecting that
argument, said that, “as a matter of reasonable probability,
defendant’s failure to make a reasonably prompt diagnosis
resulted in at least some substantial impairment of [the
plaintiff’s] mental development.” 

.

         Further, the court rejected the defendant’s argument that “the evidence was insufficient to show how
much additional [intellectual disability] resulted from the
failure of [the defendant] to make a prompt diagnosis of
hypothyroidism, including the amount of [intellectual disability] that may have occurred prior to the date when a
correct diagnosis would have been made by him.” 

(emphasis in original). The court said that the correct rule
on causation is that “there be definiteness of proof both that
harm resulted from defendant’s wrongful conduct and also
682                                                      Johnson v. Keiper

‘as to the amount of damage as far as is reasonably possible.’ ” 

 (quoting Fehely v. Senders, 

, 

(1943) (emphasis added)). The court then set out a quotation
from Restatement of Torts section 912 comment a (1939), on
which it had relied in Fehely:
    “ ‘… It is even more desirable, however, that an injured
    person shall not be deprived of substantial compensation
    merely because he cannot prove with complete certainty
    the extent of harm he has suffered. Particularly is this true
    in situations where there [cannot] be any real equivalence
    between the harm and compensation in money, as in case
    of emotional disturbance, or where the harm is of such a
    nature as necessarily to prevent anything approximating
    accuracy of proof, ….’ ”

 See also Restatement (Second) of Torts § 912 (1979) (proof
of the extent of harm and damages is required “with as
much certainty as the nature of the tort and the circumstances permit”); id., comment a (“It is desirable, also, that
there be definiteness of proof of the amount of damage as far
as is reasonably possible. It is even more desirable, however,
that an injured person not be deprived of substantial compensation merely because he cannot prove with complete
certainty the extent of harm he has suffered.”); Bigelow v.
RKO Radio Pictures, 

, 

, 

 (1946) (“The most elementary conceptions of justice and
public policy require that the wrongdoer shall bear the risk
of the uncertainty which his own wrong has created.”).3
        In light of Hansen, we conclude that the trial court
erred when it ruled that Dietrich’s testimony that defendants’ negligent conduct had caused some of plaintiff’s foot
drop was legally insufficient to prove causation. Rather,
the proper question for purposes of the directed verdict
was whether the proof of the injury caused by defendants’
negligence was provided with as much certainty as the
    3
      Definiteness of proof as far as reasonably possible for the degree of harm is
closely related to the proof required for damages, as the Hansen court suggested.
We applied that principle in Harris v. Kissling, 

, 

(1986), on the proof required for damages based on future medical expenses. We
said there that “many variables unavoidably enter into determining what future
medical expenses might be necessary, and complete ‘accuracy of proof’ cannot be
expected. … The evidence of future damages was as certain as was reasonably
possible.” 

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circumstances permitted. We conclude that it was. A jury
could have found that a pedicle screw left in a position to
impinge a nerve root is likely to cause lasting injury, and,
given Dietrich’s testimony and the record, plaintiff provided
proof of the injury caused by defendants’ negligence with
sufficient certainty for plaintiff’s claim to reach the jury.
With that said, there is evidence in the record from which
a jury could find that it was below the standard of care for
defendants not to order appropriate imaging to rule out a
misplaced pedicle screw as the source of the foot drop, and,
had defendants identified and addressed the misplaced
pedicle screw earlier, it was probable that plaintiff’s condition would have improved. The trial court erred in concluding that that evidence was legally insufficient to establish
causation.
B.   Qualification of Dietrich
         We turn to plaintiff’s contention that the trial court
erred in ruling that Dietrich was not qualified by training
or experience to provide expert testimony concerning allegations of negligence (c) and (f)—viz., failure to inform plaintiff
of the malpositioned pedicle screw and failure by Keiper to
personally provide post-surgical care to plaintiff.
         At trial, Dietrich began his testimony by discussing his experience as a neurosurgeon. He testified that he
has been a board-certified neurosurgeon since 1974, that
he practiced in southwest Washington for over 20 years,
and that he had been the medical director of a hospital in
Vancouver, Washington. As the hospital’s medical director, Dietrich was responsible for determining whether the
appropriate level of care was being provided to patients,
occasionally reviewing chart notes of doctors who had performed spinal surgeries. In his practice as a neurosurgeon,
Dietrich had treated thousands of patients with back pain,
and the bulk of his practice was spinal surgery, both cervical and lumbar, including surgeries for lumbar stenosis
and sciatica. Those surgeries included roughly two thousand microlaminotomies and facetectomies that were performed to relieve compression of the spinal canal. Dietrich
did not have experience performing spinal fusion surgery,
other than emergency surgeries for spinal trauma, but he
684                                          Johnson v. Keiper

had collaborated with orthopedic surgeons in his medical
practice group when his patients needed spinal fusions, in
which he would do the nerve decompression surgery, and the
orthopedic surgeon would, if necessary, do the fusion procedure. Dietrich frequently observed the latter part of the spinal surgery. Dietrich also was familiar with foot drop and
its causes.
         On cross-examination, defendants questioned Dietrich
about his never having placed pedicle screws using fluoroscopy, and, given that Dietrich had not performed that
procedure, they contended that he did not have the requisite knowledge to testify about the procedure. Plaintiff
responded that the purpose of Dietrich’s testimony was not
to discuss the “deep minutiae” of how the procedure was
performed but to illustrate that there was an “obvious, gross
mistake in the breach of the pedicle wall” and the “follow-up
steps [that] were taken to diagnose and appropriately treat”
the malpositioned pedicle screw. The trial court agreed with
defendants and restricted the subjects about which Dietrich
could testify, except that it ruled (as noted in the causation
discussion above) that Dietrich could testify about allegation (b)—viz., the failure to use the correct imaging test
once defendants saw plaintiff’s foot drop after surgery—and
whether the malpositioned pedicle screw had impinged on
plaintiff’s nerve.
          Plaintiff does not challenge on appeal the trial court’s
ruling that Dietrich was not qualified to testify about the
standard of care in performing the surgery (allegation (a)).
Rather, plaintiff contends that the trial court erred when it
ruled that Dietrich was not qualified to testify as an expert
on two post-surgical-care allegations—viz., failing to timely
inform plaintiff of the malpositioned pedicle screw (allegation (c)) and failing to provide personal and skilled aftercare
following the spinal fusion surgery (allegation (f)).
         A plaintiff must prove that the defendant failed to
“exercise that degree of care and skill which an ordinary
practitioner, in the same discipline in that community or a
similar community, would exercise.” Creasy v. Hogan, 

, 

 (1981). And, under OEC 702, what
qualifies an expert to give an opinion on the standard of
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care is whether the expert has the necessary knowledge to
provide testimony that can help the jury in understanding
the standard. Trees, 

; OEC 702 (“If scientific,
technical or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in the
form of an opinion or otherwise.”). Further, when assessing
an expert’s qualification to testify, the assessment looks to
“substance,” that is, an expert’s knowledge, and does not
necessarily rely on an expert’s particular medical degree or
area of specialty. 

. In other words, what is important is that an expert has “the necessary skill and knowledge to arrive at an intelligent conclusion about the subject
matter in dispute.” Burton v. Rogue Valley Medical Center,

, 

, rev den, 

 (1993).
Whether the trial court ruled correctly on an expert’s qualifications is reviewed for legal error. State v. Dunning, 

, 

 (2011).

        Plaintiff points to the fact that Dietrich is a
board-certified neurosurgeon who has over 30 years of experience as a neurosurgeon, including regularly performing
spinal surgeries. For both allegations (c) and (f), plaintiff
posits that Dietrich’s experience as a medical director in
reviewing chart notes of other doctors is particularly relevant. Given that experience and training as a neurosurgeon and hospital medical director, plaintiff argues that
Dietrich was well-qualified to help the jury understand the
post-surgical standard of care owed to plaintiff and whether
defendants breached it.

         In defendants’ view, although both Dietrich and
Keiper are neurosurgeons, Dietrich was nevertheless unfamiliar with the “minimally invasive surgery” that Keiper
performed on plaintiff. Defendants contend, as a consequence, that Dietrich does not have the skill or knowledge
necessary to have an opinion on the standard of care applicable to allegations (c) and (f). Defendants fix their attention
on the complexity of the surgery, and the best that we can
understand about their argument concerning defendants’
post-surgical care is that they implicitly contend that an
686                                          Johnson v. Keiper

expert must understand the complexities of the surgery
itself to be qualified to give an opinion on the standard of
post-surgical care for that surgery.

         Defendants’ argument is not well taken. Dietrich’s
task as an expert witness was to explain to the jury, given
that the pedicle screw was malpositioned, the appropriate
steps to be taken in plaintiff’s post-surgical care, viz., defendants should have explained the screw’s position to plaintiff and Keiper should have been more personally involved
in plaintiff’s post-surgical care. The knowledge required to
address those issues was knowledge about the extent of the
breach of the pedicle screw past the medial aspect of the L4
pedicle and its effect on plaintiff’s nerve root. The difficulty
for defendants’ position is that Dietrich did have the requisite expertise about what had happened neurologically to
plaintiff.

         To begin with, Dietrich evinced that knowledge
when he testified to allegation (b)—that defendants had
failed to obtain imaging studies after the surgery to assess
whether a misplaced pedicle screw was damaging plaintiff’s
nerve root. Dietrich’s knowledge of lumbar neurology and
foot drop—which he had obtained by his training and experience as a neurosurgeon—allowed him to helpfully explain
to the jury what the standard of care was on ordering imaging studies. Likewise, that same understanding of the L4
and L5 vertebrae and the effect of the pedicle screw on the
nerve root was sufficient to form a basis to explain what
defendants should have told plaintiff about the cause of his
foot drop and the extent to which Keiper should have been
involved in plaintiff’s care.

         Although it is true that Keiper used fluoroscopy and
neuromonitoring during the surgery to make smaller and
less-invasive incisions to place the screw and rod instrumentation, and that Keiper made some initial determinations about the pedicle screw’s positioning based on the
neuromonitoring and fluoroscopy, it does not follow that
assessment of the pedicle screw’s position after the surgery
could not be made by another neurosurgeon, who was familiar with neurological processes, by reviewing the operation
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notes and post-surgical diagnostic imaging. That is, once
the pedicle screws were positioned in the spine, detecting
where the screws were positioned and determining how
much a screw impinged on plaintiff’s nerve root rely on
methods other than Keiper’s surgical techniques. Moreover,
to the extent that defendants assert that Keiper could rely
on his assessment of how the pedicle screws were placed
during surgery to gauge what was required after surgery,
defendants could certainly rely on that for purposes of the
weight of the proof of negligence, but that argument does not
preclude a conclusion that Dietrich has the requisite knowledge and expertise to testify otherwise.

         Accordingly, Dietrich’s education, training, and extensive experience in neurosurgery and post-surgical care
sufficiently qualified him to testify about what defendants
should have communicated to plaintiff about the pedicle
screw and whether Keiper should have been more personally involved with plaintiff’s post-surgical care. Board certified as a neurosurgeon with three decades of neurosurgical
experience, Dietrich is well versed in neurological processes
and spinal anatomy and, specifically, foot drop. Although he
had not performed elective spinal fusions himself, Dietrich
had worked closely with orthopedic surgeons in his medical
group who did spinal fusions, had performed thousands of
neurosurgeries, including surgery for spinal stenosis (plaintiff’s condition), and had reviewed spinal-fusion surgery
charts. In his role as medical director of a Vancouver-area
hospital, he had been responsible for reviewing the chart
notes of other doctors, and for disciplining doctors when necessary. In this case, Dietrich’s experience as a neurosurgeon
meant that he was well situated to understand the appropriate steps necessary to care for plaintiff after surgery so that
he could assist the jury in resolving whether defendants’
post-surgical efforts, or lack of efforts, deviated from the
standard of care.

         In sum, the trial court erred in granting a directed
verdict on the ground that plaintiff had not proven causation.
Further, the court erred in ruling that Dietrich was not
qualified to testify about the standard of care related to
plaintiff’s post-surgical care, viz., informing plaintiff about
688                                        Johnson v. Keiper

the placement of the pedicle screw and failing to provide
personal and skilled attention to plaintiff’s drop-foot injury.
        Reversed and remanded.