Among stories about Alex Rodriguez’s attorney, Joe Tacopina being surprised by Matt Lauer on the Today show, Rodriguez claiming a conspiracy to keep him out of baseball, and Red Sox pitcher Ryan Dempster beaning Rodriguez on Sunday night, yet another story has emerged showing Rodriguez is digging in for the long haul in his battle with the Yankees and Major League Baseball. ESPNNewYork.com reported yesterday that Rodriguez and his legal team are preparing to sue Yankees team doctor Christopher Ahmad for medical malpractice. Ahmad examined Rodriguez’s right hip during last years playoffs after Rodriguez complained about it “being off”. Rodriguez had already had surgery on his right hip. The radiologist working with Ahmad reported the following about Rodriguez’s MRI:
“Stable postoperative appearance of the right hip with no evidence of labral re-tear, stable degenerative change, and only minimal gluteus medius insertional tendinosis. Partial evaluation of left hip revealing superior labral tear with small parabal cyst.”
According to the article, the above is a description of the radiologists report and does not include any interpretation from Ahmad. The notes were then sent to Dr. Phillippon who performed the original surgery on Rodriguez’s right hip. Dr. Phillippon reported that Rodriguez needed surgery on his left hip.
Rodriguez and his team believe that Ahmad knew he needed surgery on his left hip but did not disclose that information. The big picture here is that Rodriguez believes the Yankees put him in a position to fail by allowing him to play while he was injured. Rodriguez certainly did not disappoint going 3-for-25 in last years playoffs before being benched by Yankee manager Joe Girardi.
For Rodriguez to successfully sue Dr. Ahmad for medical malpractice, he will have to prove four elements:
- A duty was owed to him by the doctor;
- The doctor breached that duty or failed to conform to the relevant standard care;
- The breach was the direct and proximate cause of the injury; and
The first element will not be tough for Rodriguez to establish. As long as Rodriguez was under his care, Dr. Ahmad owed him a duty to conform to the standard of care that another professional in his position would. The second element will be where A-Rod will likely hit a snag. In order to prove that Ahmad breached his duty, A-Rod and his team will have to prove that another person in Ahmad’s position with the same expertise would have acted differently. In order to do so Rodriguez will have to find someone with similar experience as Dr. Ahmad to testify to that end.
Finding someone to testify that Ahmad did conform to the standard of care will not be a walk in the park either. The U.S. legal system has formulated a method of qualifying whether an “expert” witness is in fact, an expert. The approach, often called the ‘gatekeeper’ model is derived from three U.S. Supreme Court cases, Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 ), General Electric Co. v. Joiner (522 U.S. 136 ), and Kumho Tire Co. v. Carmichael (526 U.S. 137 ). Using the gatekeeper model, there will be a hearing prior to the trial in which the trial court judge will consider evidence to determine whether the expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing will consider four questions regarding the testimony that is being proposed:
- Whether a “theory or technique . . . can be (and has been) tested”
- Whether it “has been subjected to peer review and publication”.
- Whether, in respect to a particular technique, there is a high “known or potential rate of error”
- Whether there are “standards controlling the technique’s operation”.
Even if Rodriguez is able to find someone who passes this test, it’s likely the Yankees will produce their own experts who will attempt to show that Ahmad acted properly. In the unlikely event that Rodriguez is able to show Ahmad breached his duty, he will further have to prove that his injury was the direct and proximate cause of Ahmad’s breach and that there were damages caused by that breach.
Based on the facts presented and the reality that Rodriguez has to prove beyond a preponderance of the evidence that Ahmad acted improperly in treating him, it’s unlikely he will be successful in his lawsuit. Although he may not prevail in this lawsuit, Rodriguez and his team have created a sufficient distraction from the real issue: Rodriguez’s PED use. No matter how this suit turns out, they have successfully redirected the attention from his PED use to the Yankees and MLB through his accusations of a conspiracy to keep him out of baseball. In any case, the end to this story will not be pretty.