News: A patient contracted an Escherichia coli infection following an emergency cesarean section delivery, and ultimately died as the result of the infection. During trial, the plaintiff introduced expert testimony of two different physicians. The defendants moved to strike the plaintiff’s evidence, arguing the expert witnesses failed to prove causation. The trial judge granted the motion.

The patient appealed to an intermediate court, which found the trial court erred. The defendants appealed to the state’s supreme court. It affirmed that the trial court erred, ordering a new trial to be held.

Background: In 2011, during her first pregnancy, a patient was diagnosed with an incompetent cervix. To prevent a premature birth, a physician placed a cervical cerclage, a procedure that that uses a stitch or tape to reinforce the cervix. The patient later successfully delivered her first child. After the delivery, the cerclage was left in place.

In December 2013, the patient was five months into her second pregnancy. The physician performed an ultrasound to locate the original cerclage, but he could not locate it. The physician placed a new cerclage on Dec. 12, 2013. A week later, during a follow-up visit, the patient reported discomfort and pain in her legs, abdomen, and lower back. The patient did not experience these symptoms after the first cerclage in 2011. Her husband inquired as to whether she may have been suffering from an infection. According to the patient, the physician ruled out the possibility of an infection without any further investigation.

Two days after the visit, the patient called the physician and reported continuing pain and fever. The physician prescribed nifedipine over the phone and instructed the patient to take Advil. The physician did not perform any physical examination. Four days after the phone call, on Dec. 26, the patient called again and spoke with a different physician who was on call that night. The patient reported continued pain and fever. The on-call physician instructed the patient to continue taking Advil, Tylenol, and nifedipine. Shortly thereafter, the patient called yet again, at which point the physician instructed her to go to the hospital. Upon arrival, a nurse recorded that the patient experienced tachycardia, dizziness, lightheadedness, contractions, and discomfort. The patient indicated she had experienced fever and a change in vaginal discharge. The on-call physician was informed about the patient’s status over phone, but he did not go to the hospital to see the patient or to perform a physical examination.

An hour later, the patient’s membranes ruptured and released a yellow pus-like fluid followed by a green-brown discharge. The physician was immediately informed, but he still did not go to the hospital. An hour and a half after her admission, the patient’s temperature reached 100.8°F, and she was transferred to a nearby hospital that was better equipped with neonatal intensive care units (ICUs) as delivery appeared inevitable. The patient presented with severe bleeding, fever, ruptured membranes, pus discharge, and multiple organ dysfunction. Physicians immediately treated her for sepsis and chorioamnionitis by administering three complementary antibiotics and a blood transfusion. A blood test later confirmed the patient suffered from an E. coli infection.

The patient underwent an emergency cesarean section and was subsequently transferred to the ICU. She succumbed to the significant infection and resulting sepsis, and died on Dec. 31. The patient’s surviving family filed a malpractice lawsuit against her physician and the on-call physician, alleging their actions were negligent and directly caused the patient’s death. During the trial, the plaintiffs presented two expert witnesses: a physician who specialized in fetal medicine, and another physician who specialized in infectious diseases. The defendant physicians filed a motion with the court, asking to strike the expert witnesses’ statements. The defendants argued the experts’ statements failed to prove the physicians’ actions caused the patient’s death. The trial judge granted the defendants’ motion.

Multiple appeals followed the trial court’s ruling. The plaintiffs immediately sought an appeal to an intermediate court, arguing the trial court’s ruling was erroneous. That intermediate appeal was granted, and the appellate court found the trial court’s determination was in error. Next, the defendants appealed this determination, but the state’s supreme court affirmed the trial court erred, and ordered that a new trial.

What this means to you: This case reveals the indisputable importance of experts. Important lessons from this case relate to challenging the sufficiency of such experts and whether the experts have offered opinions relevant to the proceedings. Who qualifies as an “expert” may be the proper subject of debate. It is possible for care provider defendants to challenge a patient’s “expert,” who may be a specialist in a different field or who may not offer an opinion about the specific circumstances applicable to a unique case.

In this matter, the defendants challenged whether the opposing expert’s evidence was legally sufficient to demonstrate causation. The specific legal definition of causation may vary on a state-by-state basis, but often is defined as whether the party’s action or inaction played any part, no matter how small, in causing the harm, even if other factors also contributed to the harm. If multiple sources contributed to the harm, liability can be apportioned according to the varying significance levels of the harm. Here, the trial court initially determined the expert testimony did not sufficiently establish causation, as there was no testimony about what the defendants should have done and what the probable outcome would have been if they had done that.

However, the state’s supreme court disagreed, ruling the evidence submitted was enough to survive the initial litigation stage and to be presented to the jury. The state supreme court noted that the expert testified that the patient “probably” had an infection based on the progression of symptoms, and that she “would have survived” if the infection was promptly and timely treated.

Challenging the sufficiency of experts and evidence may vary depending on the timing. This is a matter of legal procedure that can significantly affect medical malpractice actions and appeals. Since this case was not presented to a jury, but instead was summarily dismissed by the court during the trial, the legal review process is extremely deferential to the presented evidence. Courts are required to consider the evidence in the “most favorable” light, and to assume that a jury would believe any and all logical inferences. It is difficult to attack evidence prior to a jury’s findings, and it may be a more beneficial option to argue this to the jury and attempt to sway the jury directly, rather than a deferential appellate court.

Upon review in this matter, the appellate court reversed the trial court’s decision to exclude the experts, and mandated a new trial. In analyzing the testimony of the plaintiff’s experts, the court noted that the first physician, a specialist in fetal medicine, clearly identified how the care providers breached their duty. The first negligent act was the treating physician’s failure to perform a physical examination, or take the patient’s vitals during the follow-up visit after the surgery. At that time, the patient already was experiencing pain in her abdomen. If a more thorough exam was performed and antibiotics prescribed, the patient would have survived. According to the court, this statement sufficed as proof of a causal link between the negligent conduct and the patient’s death.

The second witness, a specialist in infectious diseases, claimed the patient suffered an intra-amniotic infection, which pathology confirmed. The expert also opined the infection progressed into the bloodstream, indicating the patient had suffered from it for a prolonged period. Had the patient been treated immediately after exhibiting early symptoms, the spread of the infection could have been prevented, and the patient most likely would have survived. With testimony from two qualified experts, the appellate court found that any remaining factual questions were for the jury to decide. Unfortunately, in this case, the challenge to the patient’s experts was unsuccessful. However, each case is unique, as is each expert. Care providers should carefully review the propriety of challenging an opposing expert when faced with the option.


  • Decided on Feb.13, 2020, in the Supreme Court of the State of Virginia, Case Number 190019.