Plaintiff Experts Need to Connect the Dots on Causation

Virtually all medical malpractice cases turn on expert testimony. If the conflicting testimony by the expert witnesses called by the plaintiff and the defendant meets proper thresholds, a jury will be called on to decide which expert to believe. But even a well-qualified physician cannot utter just any words to get a case to the jury.

A plaintiff must prove four prongs to prosecute a claim of medical professional liability: That a duty existed between the defendant healthcare provider and patient; that the healthcare provider was negligent in his or her treatment of a patient; that the patient suffered an injury; and that there was a causal link between that injury and the negligence. The duty and injury components are usually easily met, leaving the bulk of cases to be fought over as a battle between experts. But the last requirement, “causation,” can sometimes trip up a plaintiff’s case.

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A 57-year-old gentleman drove to the hospital emergency department at 4:03 a.m. complaining of stomach pain and a tight chest. Within 15 minutes, vital signs were recorded, including a pain level of 7 out of 10. A nurse noted the patient’s height and weight (including a Body Mass Index of 33.9) and that he complained of neck pain, cough, sore throat, and chest congestion “’like a dull ache in my throat, like I’m getting strangled below my neck.’” The nurse noted the patient was alert, was denying any chest pain or shortness of breath, was speaking normally, and ambulating without difficulty. After triage, he was placed in a bed at 4:22 a.m.

The patient was then evaluated by another nurse and her notes recorded at 4:59 a.m. reflected the patient was alert, oriented, cooperative, appeared to be in distress from pain, and that he had woken up with pain as if something was “stuck” in his throat. The notes reflect that the patient complained of epigastric pain, that he denied shortness of breath or inability to swallow but that he said he feels the needs to “clear his throat, but when he does, it doesn’t clear.” The nurse noted no respiratory distress but upper chest pain and a sore throat. At 5:03 a.m., the patient was placed on a cardiac monitor and notes at 5:46 a.m. show that an IV site had been established and drawn specimens sent to the lab.

Dr. ER1, an emergency specialist, evaluated  the patient at 5:10 a.m. and ordered an electrocardiogram, which he reviewed at 5:34 a.m. A radiologist read a chest x-ray ordered by Dr. ER1 as showing “no radiographic evidence of acute cardiopulmonary disease” but “mild cardiomegaly.”

Another nurse took over the patient’s nursing care at 6:19 a.m. and notes of that care showed vital signs and that the patient “standing at bedside for comfort.”

Dr. ER2 took over from Dr. ER1 at around 6:00 a.m. and records show that over the next several hours, various tests were performed, including another ECG, two troponin tests, and other blood work. In his testimony later, Dr. ER2 said that though he had no independent memory of treating the patient, it was his custom and practice to look at electronic records to see if a patient had been treated at the hospital previously. Also, according to his custom and practice, he would have looked at any previous discharge summaries and old ECGs, and would have talked to the patient.

At 11:00 a.m., Dr. ER2 decided to discharge the patient after seeing him a second time and “improved.” Serial vital signs throughout the morning were normal and stable, and the patient’s pain had reduced to 4 out of 10. Dr. ER2’s discharge included a diagnosis of “chest pain of unclear etiology,” a referral of the patient to a cardiologist, and instruction to follow up with his primary care physician in one day.

Less than eight hours after discharge, the patient died of an acute dissection of the aorta.

Among the various allegations brought by the patient’s family in its lawsuit was the accusation against the hospital that had the nurses reviewed the patient’s chart from a hernia repair at the hospital the previous year (which included a history of smoking, morbid obesity, heart murmur, high blood pressure, and high cholesterol), notation of that review would have set in motion a chain of events that would have prevented the patient’s death.

In fact, in opposing the hospital’s motion for summary judgment (which was supported by expert testimony stating that hospital staff met the standard of care in all respects), the plaintiff produced a declaration by an expert in emergency room medicine critical of the nursing staff. In that declaration, the expert noted nursing notes stating, “History provided by patient. No past medical history.”

In the expert’s opinion, had the nurses obtained the patient’s medical history from the chart, a reasonably prudent emergency physician would have summoned a cardiologist for an emergency consult, the cardiologist would have ordered a CT scan with IV contrast, the CT scan would have shown the cause of the patient’s chest pain was an aortic dissection, and the cardiologist and ER physician would have arranged for a cardiothoracic surgery consult. The expert continued that if no surgeon was at the facility, the patient would have been transferred to another facility and the patient “would have received timely diagnosis and treatment.” A plaintiff expert in cardiology further opined that “more likely than not, a CT scan with IV contrast of the chest would have shown that the cause of [the patient’s] chest pain was thoracic aortic dissection” and that had a cardiologist have been called, surgery would have been performed and the patient would have survived.

The defense objected to the declarations on grounds of speculation, conjecture, and failure to state causation to a reasonable medical probability.

The trial court judge’s grant of the defendant’s motion for summary judgment was upheld by the Court of Appeal in Wicks v. Antelope Valley Healthcare District. In ruling that neither declaration created “a material disputed fact” that the nurses’ performance caused or contributed to the patient’s death, the appellate court wrote that the plaintiff’s ER expert’s declaration “completely ignored” the testimony of both ER doctors that they themselves customarily reviewed a patient’s medical history.

In finding in favor of the hospital, the appellate court noted that the evidence was undisputed that nurses took and recorded the patient’s vital signs multiple times and noted his mass index indicating obesity. The court also noted the patient’s placement on a cardiac monitor and had lab specimens drawn.

“[The ER expert] offers no explanation why nurses' notes summarizing past records of cardiac risk factors would have helped the ER doctors understand anything about [the patient’s] cardiac conditions that they did not already know from his vital signs, ECGs, chest X-rays' and troponin tests.”

The court of appeal said that the ER expert’s “opinions rest not on facts but a series of hypothetical conditions,” which could not meet the plaintiff’s burden.

“An expert’s opinion rendered without a reasoned explanation why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.”   

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.