Kelly on Malpractice

Dubois v. Haykal, 165 S.W.3d 634 (Tenn.Ct.App.2004) is a medical malpractice wrongful pregnancy case which shows the importance of literature as a basis of expert testimony on scientific issues. Dr. Haykal treated Dubois for bipolar disorder. He prescribed a drug called Tegretol to treat her bipolar disorder. Tegretol can cause birth defects if used during the pregnancy. Dubois informed Haykal she was taking an oral contraceptive. Dubois got pregnant and had to have an abortion to avoid having a child with birth defects. Dubois sued and presented two expert witnesses to demonstrate the causal nexus between her pregnancy and Haykal’s failure to warn her of Tegretol’s effects.

A clinical pharmacist expert for the plaintiff stated that although he had no experience filling prescriptions of Tegretol, his own research revealed Tegretol’s ability for inducing the liver to produce the enzyme responsible for metabolizing oral contraceptives. Though some of the articles upon which he relied stated that Tegretol may decrease the efficacy of oral contraceptives, numerous other sources stated that Tegretol does decrease the efficacy of oral contraceptives. Many of the articles and abstracts themselves had been published and subjected to peer review. The interaction between Tegretol and oral contraceptives had been widely known and generally accepted for years. After ruling out the possibility of pill failure, he concluded that the Tegretol prescription compromised the effect of the oral contraceptives. Dubois’ other expert, an ObGyn, agreed with the expert pharmacist. Again, there was literature that supported their opinions in favor of causation.

The trial court granted summary judgment by finding this expert testimony unreliable. Relying on McDaniel v. CSX, 955 S.W. 2d 257 (Tenn.1997), the Court of Appeals reversed, finding the testimony admissible in part because their testimony had a foundation rooted in pharmaceutical literature.

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