Background
Saja Mikhail obtained a medical-malpractice judgment against surgeon Abdelkader A. Hawasli, M.D., and his surgical practice. The record established that Mikhail permanently suffers from hypoparathyroidism and hypocalcemia after her parathyroid glands were unintentionally removed. The defense maintained that removing tissue not visible to the naked eye did not breach the standard of care.
At trial, the court sustained an objection after defense counsel referred to Mikhail’s parathyroid glands as “microscopic,” explaining that their size was disputed and remained a question for the jury. The jury also heard evidence about TransCon PTH, an injectable medication that had completed phase-three clinical trials but lacked FDA approval at the time. Experts testified that approval was more likely than not, that Mikhail was a candidate for the drug, and that its anticipated annual cost was $80,000 to $100,000.
The Court’s Holding
The Court of Appeals affirmed. It held that the trial court abused its discretion by sustaining the objection to defense counsel’s question because testimony and the pathology report supplied a factual basis for describing the glands as detectable microscopically rather than with the naked eye. The error was harmless, however, because the defense still presented its theory and obtained expert testimony that unintentionally removing tissue that could not be seen with the naked eye was not a breach of the standard of care. In context, the trial judge’s remarks did not improperly direct the jury to reject that defense.
The court also upheld the admission of evidence concerning TransCon and the award of future medical costs. Although the medication was not yet FDA-approved, testimony showed that it remained available in U.S. clinical trials, that its earlier regulatory denial concerned manufacturing controls rather than safety or effectiveness, and that approval was more likely than not. Expert testimony, historical pricing for a similar drug, and life-care-planning research provided a reasonable basis for estimating TransCon’s cost, so the damages were not impermissibly speculative or contingent.
Key Takeaways
- A trial court’s erroneous evidentiary ruling does not require a new trial when the affected party still presents its theory and the error does not undermine substantial justice.
- Future medical expenses involving a drug awaiting FDA approval may be recoverable when evidence establishes a reasonable likelihood of approval, likely use by the plaintiff, and a reasonable basis for estimating cost.
- Damages need not be proved with mathematical precision, and questions about reasonably anticipated medical expenses ordinarily belong to the factfinder.
Why It Matters
The unpublished decision illustrates that lack of FDA approval at the time of trial does not automatically make projected medication expenses too speculative. A plaintiff may reach the jury with evidence addressing the likelihood of approval, the medical suitability of the treatment, and a reliably supported price estimate.
It also underscores the demanding standard for obtaining a new trial based on a judge’s evidentiary ruling or courtroom remarks: even an abuse of discretion will not warrant reversal without material prejudice affecting the fairness of the trial.