Expert Witness Opinion Insufficient to Advance Medical Malpractice Suit
News: A pregnant woman sought treatment at a medical center after experiencing vaginal discharge. The patient was advised to visit her primary care physician. She subsequently returned to the medical center upon recommendation by the primary care physician and was administered magnesium sulfate and antenatal steroids when it became clear preterm labor was imminent. The woman was transferred to a hospital and gave birth.
Several years later, the patient filed a medical malpractice lawsuit, alleging failure to administer the correct course of steroids constituted malpractice. The defendants denied liability. The trial and appellate courts rejected the patient’s arguments, noting a lack of evidence to support her claims.
Background: In May 2011, a woman visited a medical center reporting vagina discharge. At the time, the woman was 23 weeks pregnant. A nurse put the patient on a fetal monitor, which showed no signs of uterine contractions. A physician ordered fluids and a cervical examination, finding the patient had reached 20% cervical effacement. The patient was sent home with instructions to consult with her primary care physician the next day.
The following day, the patient saw her primary physician by 4 p.m., at which time the vaginal discharge was described to have increased to a copious amount and included an observation of a bluish mass protruding from her cervix. The primary care physician considered the possibility of preterm labor but was unfamiliar with the bluish-mass abnormality. The physician referred the woman back to the initial medical center for an ultrasound to assess cervical length.
At the medical center, an ultrasound revealed the cervix was dilated 3 cm and the amniotic sac was protruding. A physician ordered staff to administer magnesium sulfate to delay preterm labor and antenatal steroids (ANS) to accelerate fetal organ maturity. The patient was transferred to a hospital. By 11:50 p.m., she was moved to the delivery room, and gave birth an hour later to a baby weighing 1.4 lbs. The baby spent 4.5 months in a neonatal ICU. The child now suffers from serious developmental delays and medical conditions, including prematurity, various brain bleeds, cerebellar hemispheric atrophy, cerebral palsy, and seizures.
In 2018, the patient, on behalf of her minor child, sued both her primary care physician and the attending physician at the initial medical center for negligent treatment, malpractice, and a loss of chance claim. The patient alleged her cervical examinations revealed preterm labor requiring the immediate administration of magnesium sulfate and ANS, and that a completed course of ANS would have reduced risk of morbidities.
During the trial, the patient proffered two expert witnesses to support her claims. However, the court determined one expert’s testimony was insufficiently reliable to be permitted. According to the trial court, the expert failed to rule out periviability in his differential diagnosis and relied on studies that were too attenuated from the circumstances of the case. Even though the second expert’s testimony was considered reliable, the court determined that without the first expert’s testimony or any other evidence to prove causation, the patient failed to provide sufficient evidence of malpractice. As a result, the court granted judgment for the defendant care providers.
The patient appealed this adverse determination. Although the appellate court found the trial court improperly excluded the first expert’s testimony, they nevertheless affirmed the trial court’s judgment for the defendants. According to the appellate court, the first expert was an experienced neonatology specialist who justified his opinion using a differential diagnosis based on review of the mother’s and child’s medical presentation. Throughout the process of eliminating plausible alternate causes, the expert acknowledged the “biggest risk factor” for the child was periviability and that it was likely to cause an unfavorable effect regardless of any ANS exposure. Thus, the expert could not explain why this plausible alternative cause was not the sole reason for the child’s morbidities. The expert’s testimony relied on 12 peer-reviewed medical studies and articles. Of these, a majority shared a similar methodological flaw as they did not provide separate analyses on the effect a partial course of ANS vs. a full course of ANS.
In this case, the patient argued a full course of ANS could have significantly reduced or eliminated several of the child’s lifelong health issues. This clear juxtaposition was found in two studies the expert provided, making them the only reliable evidence to support his testimony. The authors of the two studies concluded a full course of ANS provided a marginal risk reduction over partial ANS, between 4.1% and 4.3%. This determination supported the opinion of the expert (i.e., the full course could have affected the child’s current morbities). The appellate court determined the district court was wrong in excluding the entire testimony.
Although the first expert’s testimony was found to have a sufficient foundation, the appellate court agreed with the trial court’s judgment for the defendants. According to the appellate court, the patient failed to provide sufficient evidence to establish the necessary elements on her theory that the allegedly negligent incomplete ANS course was the cause of her child’s morbidities. It was determined through the studies provided by the experts that even a complete course of ANS could cause less-than-likely injuries. The evidence failed to prove the full course of ANS would have eliminated the morbidities. The court also noted the patient’s loss-of-chance malpractice claim was unfounded. The first step required to support this claim is to measure the chance lost. Neither of the patient’s experts provided a specific percentage showing the chances the child could have been born with no disabilities or mild disabilities but for the alleged negligent treatment. The court mentioned that even if the experts specified a percentage of chances, the medical opinion of the first expert suggesting a percentage loss of 4.1% and 4.3% would be insufficient for a claim of medical malpractice. Therefore, the trial court’s judgment for defendants was appropriate.
What this case means to you: This case confirms how expert testimony can significantly affect — or even solely determine — the outcome of a medical malpractice case. Expert opinions are almost inevitably necessary to enable a clearer and more technical understanding of disputed issues as those pertain to required elements for a medical malpractice action. These include issues relating to causation and whether the physician or care provider’s action or inaction caused patient’s alleged harm. Such opinions are offered to help juries make a fully informed decision. If those opinions are deemed unreliable, confusing, or unhelpful, courts are charged with preventing juries from hearing such unreliable opinions. Thus, it is of critical importance for care providers to recognize the importance of choosing the right expert and challenging an opposing party’s deficient expert.
In this case, the court analyzed the foundational reliability of the experts’ opinions. While the trial court believed the first expert was insufficiently supported, the appellate court disagreed. The expert presented at least two studies that supported a marginal risk reduction for a full course of ANS vs. a partial course. In this case, the end result was the same because the patient still failed to provide sufficient evidence on causation, even with the first expert’s testimony considered. But it is not always so — the exclusion or inclusion of an expert can make or break a medical malpractice action.
Appellate procedures, while not always invoked, can provide a useful mechanism for care providers to remedy erroneous rulings by a trial court. Like all litigation, medical malpractice actions are a long, time-consuming, and expensive process. Unfortunately, judges and juries do not always reach the right result. A trial court’s adverse ruling is particularly subject to an appeal, compared to a factual determination by a jury that is afforded much more deference. Fortunately for the care providers in this case, although the trial court erroneously excluded the patient’s expert, the appellate court’s reversal did not affect the result of the case. When the roles are reversed and a care provider’s expert is improperly excluded, a timely appeal can fix such an erroneous determination.
A fetus with a gestational age of 23 weeks is on the cusp of the age the American College of Obstetricians and Gynecologists considers viable, and therefore, under all circumstances, would have a minimal or no chance of surviving without significant defects resulting from the extreme prematurity of the lungs and other vital organs. Another consideration is the cause of the premature labor and subsequent delivery of the frail infant. A fetus of 21 or 22 weeks gestation that aborts spontaneously would have been considered a miscarriage. These often occur because there is something wrong with the fetus or with the mother’s ability to maintain the pregnancy. It is possible the defects currently present in the child might themselves have been the cause of the preterm labor and subsequent delivery, rather than the other way around. Whether the defendant care providers retained an expert to offer such an opinion is unclear, but this is another lesson for care providers: Explore all potential cause-and-effect relationships. Presenting a jury with different possibilities on causation will facilitate defense verdicts in medical malpractice actions, as the jury might agree the defendant care provider’s actions were not the cause of injuries.
- Decided Aug. 2, 2021, in the Court of Appeals, Minnesota, Case Number A20-1134.
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