Medical Causation Experts Pass Daubert Test, But Cannot Opine On Plaintiff's Lack Of Capacity To Sign Release

We typically write about product liability cases, not medical malpractice actions. But the two are not mutually exclusive, and similar issues arise in those cases. Medical causation is an issue we often see in both. Capacity to execute a release is not.

The facts in Bentley v. Highlands Hospital Corp., et al., 2016 U.S. Dist. LEXIS 178688 (E.D. Kentucky Dec. 27, 2016), are sad and scary. The plaintiff showed up in a hospital emergency room, complaining of nausea, back pain, and a tingling sensation in the legs. A CT scan showed no serious problems, and the plaintiff was discharged, with instructions to follow up with her family doctor. Her condition deteriorated significantly. The next day, she went to another hospital, where an MRI was performed. The radiologist, it is alleged, missed a shadow in the image of the spinal cord. The plaintiff's conditions got steadily worse, and she was sent to another hospital. Ultimately, she was permanently paralyzed from the chest down. It turned out that she had suffered serious inflammation of the spinal cord. The triggering event might have been a bout of strep throat a week earlier. We are told that the strep throat "tricked" the plaintiff's immune system into attacking nerve cells in her spinal cord, and that the resulting inflammation "climbed up both sides of her lower spinal cord, destroying the myelin sheathing on her nerve cell fibers, and disrupting communication between her spinal cord and the remainder of her central nervous system."

To support her malpractice action, the plaintiff retained three medical experts who opined that one of the hospitals could have stopped the progression of the plaintiff's paralysis if it had administered steroids when she still had motor control and sensation in her legs. These experts also opined that the plaintiff was cognitively impaired when she signed a hospital release form because she was on central nervous system depressant and an opioid painkiller at the time.

The defendant hospital moved to exclude these expert opinions. There was no issue as to whether the opinions were relevant to issues in the case. They were. There was also no issue as to the experts' qualifications. The only dispute was whether the expert opinions were sufficiently reliable as to pass Fed. R. Evid. 702 and the Daubert test. The court applied the Daubert test conscientiously, recognized that the plaintiff bore the burden of proving by a preponderance of the evidence that the...