Using Daubert to Defeat Causation in the Delayed Diagnosis Claim

In McDowell, the Eleventh Circuit upheld the district court's exclusion of all three of the plaintiff's causation experts. The court found that the plaintiff's experts' testimony established only that earlier treatment was generally preferable, and did not constitute reliable scientific evidence that earlier surgical intervention would have prevented or diminished the plaintiff's injury. The court agreed with the district court's ruling that without a reliable basis for the plaintiff's experts' opinions, “'the earlier, the better' theory was too vague to assist the trier of fact.” Id. at 1299.

Though Daubert has long been a powerful tool in the defense of products liability and toxic tort actions in federal courts, until recently it has had modest impact in medical malpractice cases. See generally Shuman DW: Expertise in Law, Medicine, and Health Care, 26 J. Health Pol. Pol'y & L. 267 (2001) (characterizing the effect of the Daubert and Kumho Tire cases on claims of medical expertise as “much ado about little,” while noting that these cases have had a significant effect on toxic tort and products liability litigation). Daubert, however, is becoming increasingly important for the well-prepared malpractice defense lawyer for two reasons. First, more and more states are beginning to abandon the “general acceptance” rule first articulated in Frye v. United States, 293 F. 1013 (App. D.C. 1923) and to adopt, either through tort reform or seminal case law, Daubert and its progeny. Notably, Georgia recently passed sweeping tort reform legislation expressly adopting “Daubert … General Electric Co. v. Joiner … Kumho Tire Co. Ltd. v. Carmichael … and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.” O.C.G.A. ' 24-9-67.1(f). In addition, 27 states — Alaska, Arkansas, Colorado, Connecticut, Delaware, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming — have adopted Daubert or a similar standard. Lustre AB: Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Evidence in State Courts, 90 A.L.R. 5th 453 (2005). Six other states — Alabama, Hawaii, Massachusetts, Nevada, New Hampshire, and New Jersey — continue to follow Frye but have incorporated elements of Daubert into their formulation of the Frye test. Id. In short, two-thirds of the states have now adopted Daubert in whole or in part as their evidentiary standard for the admissibility of scientific expert opinion testimony, including medical expert opinion testimony.

Second, whereas many unsuccessful Daubert attacks in medical malpractice cases have focused only on the expert's competency to testify as to the standard of care, it is becoming increasingly apparent that a well-crafted, narrowly tailored Daubert attack that also challenges the reliability of the plaintiff's expert's causation opinions can more easily defeat the plaintiff's claim. Compare McDowell, 392 F.3d 1283 and Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976 (6th Cir. 2004) (reversing the trial court's exclusion of expert testimony on the standard of care and finding that “extensive relevant experience” is a sufficient basis for standard of care opinions), cert. denied, 125 S. Ct. 1731 (2005).

When defending a medical malpractice action, the defense attorney should evaluate the case for a possible Daubert challenge on causation in addition to scrutinizing the plaintiff's expert's competency to testify as to the standard of care. The Eleventh Circuit declared in McDowell that “[t]he analysis we engage in then, is first whether the expert is qualified to render an opinion regarding the standard of care (the competency component), and second, whether the expert's causation theory meets the strictures of Rule 702.” 392 F.3d at 1295. (While the district court in McDowell excluded the plaintiff's expert testimony based on both competency and causation, the Eleventh Circuit disagreed, finding that the experts passed “the competency component,” but failed to articulate theories of causation that met the strictures of Rule 702. Id. at 1297-1302.) As the McDowell case illustrates, a delayed diagnosis or delayed treatment case is perfectly suited for this two-pronged type of attack. The McDowell strategy can assist in defeating a variety of “delay” claims, ranging from those arising from an acute process such as spinal epidural abscess, meningitis, appendicitis and other conditions of similar urgency in an emergency department setting, to an alleged delay in diagnosis of a more chronic disease such as cancer or an alleged delay in fetal delivery that purportedly results in neurological damage.

'The Earlier, the Better' Approach

The plaintiff in McDowell began complaining of what were later discovered to be nonspecific signs and symptoms of spinal epidural abscess, including back pain, while detained in the DeKalb County, GA, jail on a probation violation. (A spinal epidural abscess is an infection that forms in the space around the dura – the tissue envelope that surrounds the spinal cord and nerve root. These infections may generate enough pressure to affect neurological function. The symptoms are variable and subtle and may include back pain, fever, a “pins-and-needles” sensation or mild weakness. If untreated, an expanding infection may impinge the spinal cord, producing sensory symptoms and signs, motor dysfunction, and ultimately, permanent paralysis and death. Generally, intervention early in the course of the disease is thought to improve the outcome, but diagnosis is often delayed because the initial presentation may be as non-specific as back pain alone.) For several days, up through and including June 5, 1997, the plaintiff was treated by doctors and nurses employed by Wexford Health Services, a company that contracted with DeKalb County for the provision of medical services to the jail population. By June 6, the plaintiff was unable to void and was having difficulty walking. When he awoke on June 7 at the jail, he had lost voluntary motor and sensory function of his legs.

The plaintiff was transferred from the jail to Grady Health System's Emergency Care Clinic shortly after noon that day. By the time he arrived at Grady, the plaintiff's condition had progressed to full-fledged paralysis in his legs. The first Grady physician to examine the plaintiff noted his symptoms and included “rule out” spinal cord compression and epidural abscess in his differential diagnosis. The plaintiff then underwent a series of extensive tests, radiologic procedures and consults over a course of several hours. The diagnosis of spinal cord compression was confirmed, and he was admitted to the neurosurgy department, where surgery was begun at approximately 10:20 p.m. Ultimately the surgery reversed the plaintiff's total paralysis, but he remained an incomplete paraplegic.

The plaintiff sued DeKalb County, Wexford Health Services, and Grady Health System, along with their agents and employees, for an alleged delay in diagnosis and treatment of his spinal epidural abscess. The plaintiff alleged that a timelier response, treatment, and transport by DeKalb County and Wexford during the period of June 1, 1997 to June 6, 1997 would have prevented his paraplegia and that timelier diagnosis and treatment by Grady Health System once he was finally transported to the Grady Emergency Care Clinic would have completely reversed the paraplegia that had developed.

The testimony established that the standard of care for treatment of this process requires surgical decompression of the abscess as soon as possible. The expert testimony established, however, that many factors, including the duration and severity of the abscess at the time of examination, greatly impact prognosis. Relying on literature and testimony establishing that prognosis is negatively affected by the presence of symptoms for greater than 24 hours before examination, one defense theory was that it was essentially too late to reverse the damage by the time the plaintiff presented for medical care.

Plaintiff's case relied on the testimony of three experts — a neurologist, a neurosurgeon, and an infectious disease specialist. All three experts testified that the alleged delay in diagnosis and treatment of the plaintiff's spinal epidural abscess caused or worsened his condition. This theory was dubbed “the earlier, the better” theory and was based largely on the experts' observation of their own patients' recoveries. Each of these experts expressed confidence in his opinion, but none could offer any empirical data, survey, study or literature to support the theory, except for one reference to a study involving a small sampling of patients who experienced a delay at least twice as long as the one alleged in this case. The plaintiff's various experts testified that this “earlier, the better” theory was a “universal axiom” based on “common-sense,” “common understanding” and “medical logic” and that it did not “rise to the level where someone would bother reporting [the results of testing or studies].” Id. at 1299-1300. Ultimately, the experts conceded that the theory was based primarily on their personal or anecdotal experience and lacked any supportive testing, peer-reviewed and published studies, a potential error rate, or general acceptance in the community.

At the close of discovery, the Grady Defendants filed a motion to exclude the testimony of the plaintiff's three experts as being neither relevant nor reliable under Federal Rules of Evidence 702, 703, and 403. The district court granted the motion, finding that the expert's testimony failed to pass Daubert scrutiny, and excluded the causation testimony of all three experts.

In affirming the exclusion, the Eleventh Circuit held that the experts had made an inappropriate and unreliable leap from the “presumably accepted scientific principle” that earlier surgical intervention would be preferable to the “unsupported scientific principle” that a delay of more than 4 hours caused plaintiff's injury. Id. at 1302. The Eleventh Circuit emphasized that “this 'leap of faith' was supported by little more than the fact that early treatment begets improved recovery.” Id. As such, it found that the “earlier, the better” theory added nothing absent some testimony connecting the delay to the causation or aggravation of the injury. Id. at 1300.

Victoria M. Davis is a senior associate with Alston & Bird, LLP, Atlanta. She focuses her practice on products liability, toxic tort and complex medical malpractice defense. Ms. Davis, along with Dow N. Kirkpatrick and Cari K. Dawson of Alston & Bird, drafted the successful Daubert motion and brief that resulted in the exclusion of all of the plaintiff's experts by the Honorable J. Owen Forrester of the Northern District of Georgia, which was affirmed by the Eleventh Circuit in McDowell v. Brown, 392 F.3d 1283, 1288 n. 6, 1294 n.9 (11th Cir. 2004). Brian R. Stimson is an Associate with Alston & Bird's Litigation and Trial Practice group.

Part One of a Two-Part Article

The old maxim, “the earlier the treatment, the better the outcome” has been a longtime staple in plaintiffs' collection of so-called “expert medical opinions.” Let's face it — the notion that earlier treatment is preferable, while imprecise, seems like a logical conclusion for most of us. However, the Eleventh Circuit's recent decision in McDowell v. Brown , 392 F.3d 1283 (11th Cir. 2004), establishes that such general medical principles, which are typically based on no more than the expert physician's common-sense and anecdotal experience, are far too speculative to overcome an evidentiary challenge pursuant to Daubert v. Merrell Dow Pharmeceuticals, Inc. , 509 U.S. 579 (1993) and therefore fail to establish causation in a medical negligence case. This is particularly so in those cases where the defendant medical provider maintains that the plaintiff's unavoidable and unpredictable underlying condition — and not an alleged delay in treatment — caused the plaintiff's injury, such that the plaintiff would have experienced the same level of injury despite any alleged delay.

The McDowell Case

In McDowell, the Eleventh Circuit upheld the district court's exclusion of all three of the plaintiff's causation experts. The court found that the plaintiff's experts' testimony established only that earlier treatment was generally preferable, and did not constitute reliable scientific evidence that earlier surgical intervention would have prevented or diminished the plaintiff's injury. The court agreed with the district court's ruling that without a reliable basis for the plaintiff's experts' opinions, “'the earlier, the better' theory was too vague to assist the trier of fact.” Id. at 1299.

Though Daubert has long been a powerful tool in the defense of products liability and toxic tort actions in federal courts, until recently it has had modest impact in medical malpractice cases. See generally Shuman DW: Expertise in Law, Medicine, and Health Care, 26 J. Health Pol. Pol'y & L. 267 (2001) (characterizing the effect of the Daubert and Kumho Tire cases on claims of medical expertise as “much ado about little,” while noting that these cases have had a significant effect on toxic tort and products liability litigation). Daubert, however, is becoming increasingly important for the well-prepared malpractice defense lawyer for two reasons. First, more and more states are beginning to abandon the “general acceptance” rule first articulated in Frye v. United States , 293 F. 1013 (App. D.C. 1923) and to adopt, either through tort reform or seminal case law, Daubert and its progeny. Notably, Georgia recently passed sweeping tort reform legislation expressly adopting “Daubert … General Electric Co. v. Joiner … Kumho Tire Co. Ltd. v. Carmichael … and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.” O.C.G.A. ' 24-9-67.1(f). In addition, 27 states — Alaska, Arkansas, Colorado, Connecticut, Delaware, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming — have adopted Daubert or a similar standard. Lustre AB: Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Evidence in State Courts, 90 A.L.R. 5th 453 (2005). Six other states — Alabama, Hawaii, Massachusetts, Nevada, New Hampshire, and New Jersey — continue to follow Frye but have incorporated elements of Daubert into their formulation of the Frye test. Id. In short, two-thirds of the states have now adopted Daubert in whole or in part as their evidentiary standard for the admissibility of scientific expert opinion testimony, including medical expert opinion testimony.

Second, whereas many unsuccessful Daubert attacks in medical malpractice cases have focused only on the expert's competency to testify as to the standard of care, it is becoming increasingly apparent that a well-crafted, narrowly tailored Daubert attack that also challenges the reliability of the plaintiff's expert's causation opinions can more easily defeat the plaintiff's claim. Compare McDowell , 392 F.3d 1283 and Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C. , 388 F.3d 976 (6th Cir. 2004) (reversing the trial court's exclusion of expert testimony on the standard of care and finding that “extensive relevant experience” is a sufficient basis for standard of care opinions), cert. denied, 125 S. Ct. 1731 (2005).

When defending a medical malpractice action, the defense attorney should evaluate the case for a possible Daubert challenge on causation in addition to scrutinizing the plaintiff's expert's competency to testify as to the standard of care. The Eleventh Circuit declared in McDowell that “[t]he analysis we engage in then, is first whether the expert is qualified to render an opinion regarding the standard of care (the competency component), and second, whether the expert's causation theory meets the strictures of Rule 702.” 392 F.3d at 1295. (While the district court in McDowell excluded the plaintiff's expert testimony based on both competency and causation, the Eleventh Circuit disagreed, finding that the experts passed “the competency component,” but failed to articulate theories of causation that met the strictures of Rule 702. Id. at 1297-1302.) As the McDowell case illustrates, a delayed diagnosis or delayed treatment case is perfectly suited for this two-pronged type of attack. The McDowell strategy can assist in defeating a variety of “delay” claims, ranging from those arising from an acute process such as spinal epidural abscess, meningitis, appendicitis and other conditions of similar urgency in an emergency department setting, to an alleged delay in diagnosis of a more chronic disease such as cancer or an alleged delay in fetal delivery that purportedly results in neurological damage.

'The Earlier, the Better' Approach

The plaintiff in McDowell began complaining of what were later discovered to be nonspecific signs and symptoms of spinal epidural abscess, including back pain, while detained in the DeKalb County, GA, jail on a probation violation. (A spinal epidural abscess is an infection that forms in the space around the dura – the tissue envelope that surrounds the spinal cord and nerve root. These infections may generate enough pressure to affect neurological function. The symptoms are variable and subtle and may include back pain, fever, a “pins-and-needles” sensation or mild weakness. If untreated, an expanding infection may impinge the spinal cord, producing sensory symptoms and signs, motor dysfunction, and ultimately, permanent paralysis and death. Generally, intervention early in the course of the disease is thought to improve the outcome, but diagnosis is often delayed because the initial presentation may be as non-specific as back pain alone.) For several days, up through and including June 5, 1997, the plaintiff was treated by doctors and nurses employed by Wexford Health Services, a company that contracted with DeKalb County for the provision of medical services to the jail population. By June 6, the plaintiff was unable to void and was having difficulty walking. When he awoke on June 7 at the jail, he had lost voluntary motor and sensory function of his legs.

The plaintiff was transferred from the jail to Grady Health System's Emergency Care Clinic shortly after noon that day. By the time he arrived at Grady, the plaintiff's condition had progressed to full-fledged paralysis in his legs. The first Grady physician to examine the plaintiff noted his symptoms and included “rule out” spinal cord compression and epidural abscess in his differential diagnosis. The plaintiff then underwent a series of extensive tests, radiologic procedures and consults over a course of several hours. The diagnosis of spinal cord compression was confirmed, and he was admitted to the neurosurgy department, where surgery was begun at approximately 10:20 p.m. Ultimately the surgery reversed the plaintiff's total paralysis, but he remained an incomplete paraplegic.

The plaintiff sued DeKalb County, Wexford Health Services, and Grady Health System, along with their agents and employees, for an alleged delay in diagnosis and treatment of his spinal epidural abscess. The plaintiff alleged that a timelier response, treatment, and transport by DeKalb County and Wexford during the period of June 1, 1997 to June 6, 1997 would have prevented his paraplegia and that timelier diagnosis and treatment by Grady Health System once he was finally transported to the Grady Emergency Care Clinic would have completely reversed the paraplegia that had developed.

The testimony established that the standard of care for treatment of this process requires surgical decompression of the abscess as soon as possible. The expert testimony established, however, that many factors, including the duration and severity of the abscess at the time of examination, greatly impact prognosis. Relying on literature and testimony establishing that prognosis is negatively affected by the presence of symptoms for greater than 24 hours before examination, one defense theory was that it was essentially too late to reverse the damage by the time the plaintiff presented for medical care.

Plaintiff's case relied on the testimony of three experts — a neurologist, a neurosurgeon, and an infectious disease specialist. All three experts testified that the alleged delay in diagnosis and treatment of the plaintiff's spinal epidural abscess caused or worsened his condition. This theory was dubbed “the earlier, the better” theory and was based largely on the experts' observation of their own patients' recoveries. Each of these experts expressed confidence in his opinion, but none could offer any empirical data, survey, study or literature to support the theory, except for one reference to a study involving a small sampling of patients who experienced a delay at least twice as long as the one alleged in this case. The plaintiff's various experts testified that this “earlier, the better” theory was a “universal axiom” based on “common-sense,” “common understanding” and “medical logic” and that it did not “rise to the level where someone would bother reporting [the results of testing or studies].” Id. at 1299-1300. Ultimately, the experts conceded that the theory was based primarily on their personal or anecdotal experience and lacked any supportive testing, peer-reviewed and published studies, a potential error rate, or general acceptance in the community.

At the close of discovery, the Grady Defendants filed a motion to exclude the testimony of the plaintiff's three experts as being neither relevant nor reliable under Federal Rules of Evidence 702, 703, and 403. The district court granted the motion, finding that the expert's testimony failed to pass Daubert scrutiny, and excluded the causation testimony of all three experts.

In affirming the exclusion, the Eleventh Circuit held that the experts had made an inappropriate and unreliable leap from the “presumably accepted scientific principle” that earlier surgical intervention would be preferable to the “unsupported scientific principle” that a delay of more than 4 hours caused plaintiff's injury. Id. at 1302. The Eleventh Circuit emphasized that “this 'leap of faith' was supported by little more than the fact that early treatment begets improved recovery.” Id. As such, it found that the “earlier, the better” theory added nothing absent some testimony connecting the delay to the causation or aggravation of the injury. Id. at 1300.

Victoria M. Davis is a senior associate with Alston & Bird, LLP, Atlanta. She focuses her practice on products liability, toxic tort and complex medical malpractice defense. Ms. Davis, along with Dow N. Kirkpatrick and Cari K. Dawson of Alston & Bird, drafted the successful Daubert motion and brief that resulted in the exclusion of all of the plaintiff's experts by the Honorable J. Owen Forrester of the Northern District of Georgia, which was affirmed by the Eleventh Circuit in McDowell v. Brown , 392 F.3d 1283, 1288 n. 6, 1294 n.9 (11th Cir. 2004). Brian R. Stimson is an Associate with Alston & Bird's Litigation and Trial Practice group.