News: In the summer of 2012, a minor child was taken to an ED in Texas for severe pain in his legs. The child was diagnosed with contusions on his legs and was quickly discharged with instructions to take Tylenol with codeine and to follow up with a pediatrician. The child was soon thereafter admitted to another hospital for a lengthy period following a diagnosis of a bacterial infection. As a result of the infection, the child suffered bone damage, among other injuries, and required multiple surgeries.

The parents filed suit, claiming that a delay in treatment constituted medical malpractice. After a series of motions for summary judgment (a motion asking the court to rule in a party’s favor based on undisputed evidence obtained in discovery, prior to a full presentation to a jury to resolve disputed questions of fact) as well as an appeal involving a dismissed defendant, the court ultimately ruled in favor of the physician and hospital, granting their summary judgment motion. The exclusion of the plaintiffs’ expert witness under the critical Daubert case governing expert witnesses was the primary basis on which the summary judgment motion was granted.

Background: On June 29, 2012, two parents took their minor child to the ED at a Texas hospital because he was complaining of leg pain. The physician who examined the child diagnosed him with contusions on both hips. Shortly thereafter, the physician discharged the child and instructed the parents to give their son Tylenol with codeine for pain, and follow up with a pediatrician in a few days. Unfortunately, the child’s symptoms worsened overnight, prompting the parents to take him to the ED at a pediatric hospital the next day.

Medical professionals at the hospital conducted tests that suggested the child suffered from a bacterial infection. Thus, the hospital admitted him and administered antibiotics. The child was hospitalized for more than a month, during which time he underwent multiple surgeries and was treated for a methicillin-resistant Staphylococcus aureus infection.

Because of the infection, the child suffered permanent bone damage and is at risk for future injuries and infection. The parents, individually and as next friend for their minor son, asserted claims of medical malpractice in March 2014 against the hospital, the physician, and the physician’s employing consulting company. The parents contended their child would have experienced a better outcome if he had received antibiotics and been transferred to a pediatric medical center sooner.

The parents asserted claims against the hospital for medical malpractice and for violations of the Emergency Medical Treatment and Labor Act (EMTALA). The medical care entity then moved for summary judgment on all of plaintiffs’ claims and causes of action against the hospital, and plaintiffs filed a cross-motion for partial summary judgment on their EMTALA claim. Particularly important to the dispositive motion that terminated this case, defendants also filed separate motions to strike the opinion of plaintiffs’ physician expert witness.

On Aug. 7, 2015, the court held a hearing on the parties’ motions for summary judgment and motions to exclude the opinions of the plaintiffs’ expert witness. The court granted the hospital’s motion for summary judgment and denied plaintiffs’ cross-motion. The court also determined the expert testimony was “not the product of reliable principles and methods and he did not reasonably apply the principles and methods, had those been reliable, to the facts of the case.” Thus, the court ruled that the expert testimony was inadmissible under Federal Rule of Evidence 702.

Following a denied appeal, the physician’s and consulting company’s pending summary judgment motion was heard. The crux of that summary judgment motion was that the plaintiffs could not prevail on any of their remaining claims because, as a result of the prior exclusion of expert testimony, the plaintiffs proffered no competent medical expert testimony that any alleged negligence by the physician caused the plaintiff’s injuries. Rather than developing new evidence and writing new briefs, the plaintiffs adopted the briefs and appendices they previously filed in opposition to the hospital’s summary judgment motion and the separate motions to exclude their expert’s causation opinions as their response to the pending summary judgment motion. Plaintiffs did not submit any additional argument or evidence.

The court ultimately granted the latter defendants’ summary judgment motion because the court found that plaintiffs failed to present any evidence of causation by an expert witness, as is required where the standard of care is not well known to laypeople.

What this means to you: When the child was brought to the hospital, his treatment was subject to EMTALA, a federal law that requires anyone coming to an ED to be stabilized and treated, regardless of their insurance status or ability to pay. A potential claim under the EMTALA, which the plaintiffs brought here, is a failure to provide an adequate medical screening examination. To comply with EMTALA, it is important hospitals ensure that all patients whose care falls under the act receive the same treatment, regardless of their ability to pay, and that adequate medical screening procedures are in place.

An issue arose in the case over what comprises an “appropriate medical screening examination,” since the phrase is not defined in the act. The court determined that the main inquiry in determining whether a screening is adequate is differences between the screening examination that the plaintiff received and examinations that other patients with similar symptoms received at the same hospital; whether the hospital followed its own standard screening procedures; and whether the hospital provided such a cursory screening that it amounted to no screening at all.

The court concluded that the screening procedure followed by the hospital in this case was appropriate under EMTALA. Despite the ruling, it is important that compliance officers also focus on the equality of treatment among patients, rather than setting a particular procedure. However, setting procedures for medical screening examinations can be very valuable when compliance comes into question.

Another claim made by plaintiffs under EMTALA was a failure to stabilize the child prior to discharge. EMTALA focuses on any permanent effects of failing to administer medical care to patients in emergency medical situations. However, considering the degree of uncertainty with diagnosing patients, the act has been interpreted to take the physician’s diagnosis as it stands — here, a pair of contusions, which naturally did not give rise to an emergency. This gives physicians power to stand by their diagnoses under the act and prevents second-guessing in emergencies. The only other issue that might be considered was the extent and detail of the history given by the parents and the child. Although this is hindsight in motion, was any trauma to the hips in which there was a wound included in the history? Infection in bone usually seeds from an external source, such as direct trauma to the site or a tooth, gum, ear, or other infection, especially anaerobic, even if resolved. However, if all bloodwork results, physical examination, and history including the above questions did not indicate infection, it was likely within the standard of care to not consider infection as the source of the child’s pain.

Another argument made by the plaintiffs in this case was that the physician was negligent because of a failure to place the child on a broad-spectrum antibiotic. However, given the symptoms exhibited by the patient, and especially considering the diagnosis given by the physician, such a use of antibiotics was not appropriate. Unwarranted antibiotic prescriptions contribute to drug resistance and can cause health complications in young children. The physician’s acts were a good model for other medical professionals.

Finally, this case again illustrates the continuing power of Daubert v. Merrill Dow Pharmaceuticals, 509 US 579 (1993), which established the standards for admissible expert testimony. It is important for defendant physicians to retain quality experts early in the case and for their counsel to properly attack retained experts on the other side and/or move for summary judgment if the plaintiff has an unqualified expert or no expert on an issue requiring expert testimony because it is too complicated for the average layperson to understand on his or her own.


Decided on Aug. 7, 2017, in the United States District Court, N.D. Texas, Dallas Division; case No. 3:14-cv-0898-M.