Kelly on Malpractice

We have discussed a variety of depressing cases recently about expert testimony. In particular, appellate courts have been affirming summary judgment / dismissal where the expert opinion relative to causation was found wanting. I have examined all of those cases for you in prior issues of this newsletter. However, there is a new case that has profound consequences for the plaintiff’s bar where experts are testifying about causation based on personal experience. I am devoting this entire newsletter to that case in hope that you can use it effectively to prosecute a medical malpractice action or any other personal injury action where medical causation is disputed.

In Jackson v. Joyner, 2009 WL 928290 (Tenn.Ct.App.), Karen Jackson (Ms. Jackson) underwent a total hysterectomy. She was forty years of age. The surgery was performed by Defendant Johnny Joyner, M.D. (Dr. Joyner), who was then employed by the Jackson Clinic Professional Association (the Jackson Clinic; collectively, “Defendants”). Ms. Jackson was discharged and then suffered complications. She was referred by Dr. Joyner to Robert Summitt, M.D. (Dr. Summitt), a urogynecologist, for further evaluation. Dr. Summitt evaluated Ms. Jackson and diagnosed her as having a two millimeter vesicovaginal fistula and a urinary tract infection. Ms. Jackson arrived at the emergency room by ambulance. Dr. Joyner and Dr. Swetnam discovered Ms. Jackson had a necrotizing fasciitis in her left abdominal wall. Necrotizing fasciitis is a rare bacterial condition that causes tissue to die and infection to spread quickly across deep layers of the skin. Patients diagnosed with this condition have a high rate of mortality. The infection/sepsis resulted from a previously undiagnosed subfascial hematoma/hemorrhage following her hysterectomy. Dr. Joyner debrided the infected area to remove the necrotic tissue. Ms. Jackson underwent a second surgery to remove additional tissue, and was treated with antibiotics. She was transferred to Baptist Hospital in Memphis, where she underwent addition surgery and later died.

Plaintiff, Mr. Jackson, filed a complaint for wrongful death and medical malpractice against Dr. Joyner and the Jackson Clinic in the Circuit Court of Dyer County. In his complaint, Mr. Jackson alleged that Dr. Joyner’s failure to diagnose the subfascial hematoma and his failure to “evaluate, treat or monitor the hematoma” until October 11, 2003, was a clear deviation of the standard of care. He alleged that Dr. Joyner’s failure to timely diagnose and treat the hematoma caused the necrotizing fasciitis and sepsis and proximately caused Ms. Jackson’s death. Defendants filed a motion to exclude portions of Dr. Strickland’s “causation testimony.” Defendants further asserted that Dr. Strickland based his causation opinion upon nothing but experience despite admitting that he had never treated necrotizing fasciitis, that he is not an infectious disease specialist and would not treat the actual condition at issue. Dr. Strickland knew of no scientific article or study which would support his causation opinion, thus his testimony was entirely speculative. The trial court granted Defendants’ motion and excluded Dr. Strickland’s causation testimony as lacking trustworthiness and reliability. The trial court granted Defendants’ motion for summary judgment the same day.

The summary judgment was based entirely upon the excluded testimony of Dr. Strickland, i.e., the inability to demonstrate that Dr. Joyner’s alleged breach of the standard of care by failing to diagnose and treat Ms. Jackson’s condition earlier proximately caused her death. Mr. Jackson appealed.

The Court of Appeals perceived the trial court’s determination to be based on Dr. Strickland’s lack of direct experience in treating necrotizing fasciitis after diagnosis of the condition. The Court started its analysis by noting that a motion in limine should not be used as a vehicle to preclude a claim or defense or as a substitute for a motion for summary judgment. See Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn .Ct.App.2008). Instead, a motion in limine provides a means by which a party may seek guidance from the trial court regarding an evidentiary question in order to formulate their trial strategy. Id. It essentially substitutes for an evidentiary objection that may be made at trial. Id. A motion in limine is not subject to the same safeguards as a motion for summary judgment or for partial summary judgment. Id.

The Court of Appeals next turned to the trial court’s function as a gatekeeper to determine whether an expert’s proffered opinion will substantially assist the trier of fact under McDaniel v. CSX Trans., 955 S.W.2d 25 (Tenn. 1997) and TENN R. EVID. 702, 703. Although an expert opinion should not be admitted when it is based on mere speculation, it is the function of the trier of fact to determine the weight to be given to legitimate conflicting views. McDaniel, 955 S.W.2d at 265. Admissible evidence is “tested with the crucible of vigorous cross-examination and countervailing proof” following which a defendant may challenge its sufficiency by moving for a directed verdict. Id.

The Defendants asserted on appeal that expert testimony like Dr. Strickland’s cannot be based on mere speculation or connection to data only through the ipse dixit of the expert. A connection must exist between the expert’s knowledge and the basis for the expert’s opinion. See Brown v. Crown Equip. Corp., 181 S.W.3d 268 (Tenn. 2005). There must not be an “analytical gap” between the data upon which the expert relies and the opinion offered by the expert. Id. The factors outlined in McDaniel and its progeny, however, are not exclusive. Id. An expert’s opinion may be considered reliable if the conclusions reached by the expert are straight-forward and are supported by a “rational explanation which reasonable [persons] could accept as more correct than not correct.”

With these principles in mind, the Court of Appeals’ focus then turned to Dr. Strickland and the merits of his causation opinion. The Court determined that Dr. Strickland was a qualified Ob/Gyn expert who was competent to testify. The Defendants asserted that Dr. Strickland was not sufficiently personally experienced with the treatment of necrotizing fasciitis and sepsis to opine on whether earlier diagnosis and treatment would have prevented Ms. Jackson’s death. Dr. Strickland testified from his experience in the form of probabilities (more likely than not). The Court of Appeals found that in light of his experience, Dr. Strickland was qualified to offer this expert opinion relating to causation. The weight to be afforded to Dr. Strickland’s testimony in light of his lack of direct experience treating infectious disease was a matter to be determined by the jury. The Court of appeals further found that the weight to be afforded Dr. Strickland’s opinion following cross-examination and Defendants’ proof was a matter to be determined by the jury. Therefore, the Court of Appeals vacated the trial court’s summary judgment and reversed the exclusion of Dr. Strickland.

Jackson v. Joyner is a seminal case because it allows experts to support their causation opinions with experience, personal or otherwise, without the additional burden of statistical data. If your expert has experience with the medical issue at hand, the jury will hear it.