## Facts

- A licensed podiatrist performed an in-office toe-shortening procedure on a patient’s right foot and provided post-operative care.
- The patient alleged the surgery and follow-up treatment fell below the standard of reasonably careful podiatric practice, causing a serious infection, osteomyelitis, and permanent impairment affecting walking and balance.
- Post-surgery, the podiatrist wrapped the foot and advised vinegar-and-water soaks; at follow-up visits, the foot became painful, red, and swollen, and the podiatrist advised further soaks and re-bandaging.
- When drainage developed near the incision, the patient consulted a family physician, was hospitalized, received IV antibiotics, and was treated by an orthopedic surgeon.
- At trial, over objection, the court admitted the orthopedic surgeon’s expert opinions criticizing the need for the surgery, the office setting, and the adequacy of post-operative immobilization and antibacterial treatment.
- The orthopedic surgeon admitted he had not performed the specific podiatric procedure, had no podiatric education, and did not know podiatric standards for the surgery or post-operative care.
- The jury returned a verdict for the patient and awarded damages.
- The intermediate appellate court reversed and ordered dismissal with prejudice, reasoning that without a properly qualified expert the plaintiff failed to establish a prima facie case.
- The state supreme court reviewed whether cross-discipline expert testimony was permissible on this record and what remedy followed from erroneous admission.

## Issues

1. Whether a malpractice plaintiff may prove a podiatrist’s standard of care through an orthopedic surgeon’s testimony absent a foundation showing familiarity with podiatric standards or substantial identity of standards between the disciplines for the procedure and care at issue.
2. If such testimony was erroneously admitted and the remaining evidence is insufficient, whether the proper appellate remedy is dismissal with prejudice or a new trial.

## Decision

- The court held the orthopedic surgeon’s testimony on the podiatric standard of care was inadmissible because there was no foundation for familiarity with podiatric standards or equivalence between orthopedic and podiatric standards for the relevant surgery and post-operative treatment.
- The court rejected dismissal with prejudice as the remedy.
- The court remanded for a new trial, reasoning that the trial court’s evidentiary ruling allowed the plaintiff to proceed without the needed foundation and deprived her of a fair opportunity to cure the defect.
- The judgment of the intermediate appellate court was affirmed in part (inadmissibility) and reversed in part (dismissal), with remand.

## Legal Principles

- Expert testimony on professional standard of care must rest on demonstrated knowledge of the defendant’s specialty’s standard or a substantially similar standard applicable to the act or treatment at issue.
- A practitioner from another discipline may testify on the standard of care only if a proper foundation shows familiarity with the defendant specialty’s standards or a substantial identity of standards for the relevant procedure and post-operative care.
- When a trial court erroneously admits standard-of-care expert testimony without the required foundation and the plaintiff reasonably relies on that ruling, the appropriate remedy is generally a new trial rather than dismissal with prejudice.

## Conclusion

The court required a foundation establishing familiarity with podiatric standards (or equivalence of standards) before allowing cross-discipline expert testimony on a podiatrist’s standard of care, and it ordered a new trial—rather than dismissal—because the trial court’s erroneous evidentiary ruling affected the plaintiff’s ability to present properly supported proof.


Melville v. Southward, 791 P.2d 383 (Colo. 1990)