The Mississippi Supreme Court published one opinion today, McDonald v. Memorial Hospital at Gulfport, a divided opinion in which the court split 7-2, with Carlson in the majority and Kitchens dissenting, joined by Graves. The opinion splits over qualification of expert witnesses used by the plaintiffs in a medical malpractice action. The suit was against a gastroenterologist; the plaintiff listed as experts a pathologist and a pathologist/pyschiatrist. Reading between the lines, it appeared that the pathologist/psychiatrist had not dealt with intubation and the like since his residency in the sixties. While the majority opinion acknowledged the rule that experts need not have the same speciality as the doctors being sued, the majority holds that these experts didn’t know enough about the area of specialty. Kitchens dissent states the rule, apparently national, that the experts need not have the same specialties, and argues that the majority is applying a far narrower rule on this issue than any other state, and also a narrower rule than Mississippi’s earlier case law would support. He also argues that Mississippi this is part of a trend in Mississippi cases, and that the trend is in error.
Someone who last practiced that specialy 40 years ago is hardly an expert. Good ruling.
Kingfish, I beg to differ. The point you raise goes to weight and credibility not qualification. We both know that when the Mississippi Supreme Court adopted Khuomo Tire, they raised the burden of proof on the admissibility of expert testimony from “a reasonable degree of medical certainty” (some say 51%) to “statistically significant”, or 2 deviations from the norm on the bell curve (90%). That places an onerous burden on the proponent of the testimony, (almost “beyond a reasonable doubt” the criminal standard) and has no support in the language of Rule 702 MRE (or FRE for that matter.) No, Justice Kitchens is right. Sorry
Whether the physician practiced 40 years ago or 40 days ago goes to his credibility. Shouldn’t the jury determine the credibility of the expert and the weight to be accorded his testimony and opinion. Shouldn’t counsel bear the responsibility for gutting the other side’s experts? I don’t want our state court judges foolin’ with experts … they have plenty of other ways of screwin’ up trials.
If I read Kitchens overall opinion correctly he is mighty close to saying it’s okay with him if the “experts” merely slept in a Jackpot Inn , http://tinyurl.com/dxt7yl ,errrr ummm I meant the Holiday Inn Express at least once in their life. Using the “see one, do one, teach one” mentality then two experts would qualify. However, I’d caution that doesn’t put them in the position of being able to second-guess someone that performs the procedure routinely and is board certified. Kinda like a $250.00 per case divorce lawyer with a bad combover representing me in a capital murder trial. Ain’t gonna happen. And shouldn’t.
h/t to Justice Kitchens on his Jackpot Justice two weeks ago on that Copiah County speeding drunk driver with Goodyear tires. http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO55652.pdf
I see why he’d want loose cannon experts on retainer though. He likes them. And I thought I liked him when he ran and I voted for him. Poor homework on my part.
At some point, weight is so slight that a reasonable jury couldn’t credit the expert. I think that point was reached in the present case.
I mean, on Ben & Bayrat’s standard, why bother with Daubert? Just let the expert’s utter lack of training or methodology go to the jury.
If Kitchens was right on this one, I am going to have to have it explained to me a bit more.
While the majority opinion acknowledged the rule that experts need not have the same speciality as the doctors being sued, the majority holds that these experts didn’t know enough about the area of specialty. Kitchens dissent states the rule, apparently national, that the experts need not have the same specialties
IOW, they agree on that rule. The majority just thinks that the expert should have *some* directly relevant experience.
Bayrat, can you cite that case? I practice predominantly in med mal and products liability and I’ve never heard that expressed. Kumho Tire doesn’t say it and neither does Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716 (Miss. 2005). The fact that an alleged expert hasn’t performed a procedure in 40 years, practices in a different specialty and didn’t even claim familiarity with the current procedure in the defendant’s specialty certainly goes to the heart of the “reliability” of his testimony. For an example of where the Supreme Court affirmed the exclusion of a defense expert on the same grounds, see Mariner Health Care v. Estate of Edwards, 964 So.2d 1138 (Miss. 2007).
Kingfish did not state it correctly. The doctors have no qualifications, other than being doctors. One of the doctors last did an intubation during his residency. Would anyone get a fresh law student graduate whose entire legal experience consists of a real estate closing to testify as expert witness in a legal malpractice case? Or, is it enough to be a mammal?
It should be noted that the deceased was “DNR” prior to the procedure.
Is Gerald Maples the same lawyer that filed the global warning law suit against the oil companies after Katrina? Could his case picker be broke?
Just to be clear on a point that was overlooked in the testimony I could read. The intubation appears to have been elective, meaning it was to protect the patient’s airway as a choice and not as a result of the patient needing to be intubated to save life. The initial discusson/decision to intubate would have been to prevent aspiration, not to save his life due to the procedure or a failure of the procedure. Granted the fact remains that the gastroenterologist could have elected to not perform the EGD due to the inability to protect the airway, since there was a high probability that the gag reflex would have been elicited and aspiration was a risk, but not a certainty. That being said, the wife either misunderstood the rationale or intent of the intubation or misapplied the patient’s intent of being a DNR.
Do Not Recusitate does not equate to Do Not Treat or do not prevent death, but merely do not attempt heroic life-saving treatments. The patient could have been intubated and extubated following the procedure without any complications. It is done every day. Lots of times. In fact, most general surgery patients undergoing general anesthesia are intubated to prevent aspiration (vomiting and it getting into the lungs). Not a big deal in most cases. However, the fear of being dependent upon ventilators (machines) for a long time motivates people to equate “don’t put me on a breathing stick or machine” with a common standard of care provided to prevent the aspiration. That being said, I’d simply equate the decision to not intubate as the proximate cause of death. This was the decision of the wife, NOT the gastroenterologist. The death is more likely to be attributed to aspiration of vomitus, which could have been prevented by actions of the wife allowing intubation: NOT the gastroenterologist performing the procedure.
The case is totally obscure as to what the experts were going to say and why they should or should not be qualified. There might have been some subjects they were qualified to opine about, but I guess we will never know what they were being offered for. Obviously, they could have testified as to how the nurse’s negligence caused some damage but we do not know if they were going to testify about that.
I cannot imagine a plaintiff’s lawyer trying to get by with those two experts. If the judge didn’t knock them out, the jury would have. Who would take a case on a DNR patient in the first place?
Razor, I wouldn’t evaluate Kitchens on this case. More later about that.
I happened to be in Court the day this case was argued before the Trial Court and I assure you the old adage that bad cases make bad law applies to this case. I am on the Plaintiff’s side of the battle but in this case I have to say I had a problem with the Plaintiff’s theories and did not disagree with the summary judgment based upon the expert issues.
As Fishwater suggested, case picker musta been broke. And having worked in health care previously, I can concur with Razor’s read of the medical procedure facts above.
As I remember the arugments in the trial court, the Doctor begged the wife to allow him to intubate not once but several times and she refused.
“Kitchens dissent states the rule, apparently national, that the experts need not have the same specialties, and argues that the majority is applying a far narrower rule on this issue than any other state . . . ”
Not necessarily. Kitchens’s reasoning seems misleading.
The majority does not appear to be applying a far narrower rule on this issue than any other state – one other state being Alabama.
Kitchens’s dissent is flawed if he in fact believes Alabama (Alabama being an “any other state”) has a broader rule with respect to experts (and their lack of requirement to be “similarly situated”) than what was just applied by the majority in McDonald.
For example, the Alabama Supreme Court recognizes in med-mal cases the plaintiff has the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have.
In Alabama, to be qualified to testify as to the standard of care, an expert is defined as a similarly situated health care provider. Medlin v. Crosby, 583 So. 2d 1290, 1296 (Ala. 1991).
A similarly situated health care provider meets all the following qualifications:
1. Is licensed by the appropriate regulatory board or agency of this or some other state.
2. Is trained and experienced in the same discipline or school of practice.
3. Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred. Anderson v. Alabama Reference Laboratories, 2000 WL 1174214, No. 1982182 (Ala. 2000).
There are, of course exceptions to the requirement for an expert. One exception is where lack of skill or care is so apparent that a layman’s common knowledge and experience would lead him/her to understand it – say for instance, when a foreign object is left in a patient after surgery.
Not hard to figure out that leaving a sponge in after surgery is – ahem – below the standard of care and that it causes problems. Expert not needed, simiarly situated or not.
Now, assuming it’s not just a sponge left in after the surgery and it’s a legitimate more complex problem that you or I (not having slept in a holiday inn express the night before) . . . then the expert is required, and that expert must also present testimony establishing a causal connection between the healthcare provider’s act or omission of the alleged breach and the suffered injury. Pruitt v. Zeigler, 590 So. 2d 236, 238 (Ala. 1991).
To prove causation, the plaintiff must show the alleged negligence probably caused, as opposed to possibly caused, the plaintiff’s injury. A mere possibility is insufficient.
But this is Alabama.
You’re in Mississippi – a whole different animal.
Just wanted to point out some differences.
Perhaps not meaning anything here, I’m having some sort of memory of Galvez from a long time ago from death penalty cases, I think, but can’t pull up anything on Westlaw that rings a bell. Jim Craig? Anyone else?
Tim, thanks for taking the case picker to the lab for us.
Razor, I wouldn’t evaluate Kitchens on this case.
He’s pushing the boundaries, but that is pretty much what he was elected to do. I wouldn’t say that his opinion is egregious, at least as a dissent — I’d be a little appalled if the majority had gone along. (Is that a rational thing to say, I wonder?)
That’s a rational thing to say, Anderson. A dissent by its nature is more of an argument and more a personal point of view.
One of the thing a court needs to be kept honest– here I mean honest in the sense of saying outloud the reasoning for decisions, not honest in the more usual sense– is someone who is willing to state strong and clear points of view when he/she thinks the rest of the court is wrong. Kitchens is doing that. I’m more inclined to agree with him than not.
Anderson, no offense, but I think you’ve missed the boat on this case. Kitchens is exactly right. Rule 702 only requires, as you say, “some directly relevant experience” to qualify an expert witness. Kitchens’ point is that this is a highly permissive standard (the rule itself says so) and that these experts meet that meager requirement. Whether that barely-qualified expert is believable is a question for a jury.
Also, all this attention to the patient’s DNR status is a complete red herring. That’s an issue for a jury. The issue here is whether these experts should have been allowed to testify.
Oy, my response got eated. Trying again:
The majority, para. 15:
“First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.” Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003) (citing Miss. R. Evid. 702) (citation omitted). Generally, it is not required that an expert in a medical-malpractice case be of the same specialty as the doctor about whom the expert is testifying. Hubbard, 954 So. 2d at 957 (Miss. 2007). * * * However, the expert still must show satisfactory familiarity with the specialty of the defendant doctor in order to testify as to the standard of care owed to the patient. Id. (citing West, 661 So. 2d at 718-19).
Kitchens himself cites favorably (at para. 29) the Conn. Sup. Ct. in Pool v. Bell:
“[T]he crucial question is whether the expert knows what the standards of practice are.” Id. at 542 (citations omitted).
Under Miss. law, a medical provider can be held at fault only for a violation of the relevant standard of care, and that violation must be proved by an expert familiar with that standard of care. I do not see where Justice Kitchens shows that the majority was incorrect in finding insufficient basis to hold that the experts were indeed thus familiar.
Quoting only the “directly relevant experience” of Rule 702, without the “qualified” portion, is not persuasive.
Nor, frankly, is any bare citation to the rule. My favorite legal anecdote concerns the new associate whose first assignment was to “find the law on” some issue. He returned with a memo seting forth the relevant statutes, regulations, and rules.
“Fine,” said his boss, handing back the memo. “Now, go find me the cases that tell me what these mean.”
To:It’s About Time, the opinion states the plaintiff’s doctor/experts offered no opinion related to the hospital (nurses).
Somslawyer,
No case. Khumo Tire says “statistically significant”. My understanding is that “statistically significant” means two deviations from the norm on the bill curve: 90%. That is what is required by the courts now in order for expert testimony to come in. That raises the bar of admissibility does it not?
Tightlip
That’s my point. Why not? What lawyer would put up a nurse without a doc to tie in the causation? I would think a pathologist might be the perfect witness to do that.
Bayrat, unless you are talking about some legal definition that I am not familiar with, “statistically significant” does not mean two standard deviations from the norm. “Statistical significance” is a subjective opinion developed by the person looking at the data, i.e. 90% confidence, 95%, or 97%. The true standard deviation (anyone remember Root Mean Squares?, or discrete random variable in this article) is not known, unless every value is known. This means that more data points (a larger percentage of the known population) equals greater confidence in the standard deviation which equals more confidence in setting the precise number of standard deviations from which a value can stray from the mean and still be considered to be an acceptable value.
True story: I came home from MSU one summer and was proud to report to my late father that I had made an A in Logic class. Without missing a beat, my father said “Logic? Too bad they don’t have a class on common sense”.
Isn’t “statistical significance” just a fancy way of saying “I don’t think it mere random chance that x occured.” But then it’s been a long time since I took statistics. And none of them where on the 500 level to begin with :)
NMC @ 1127. I respectfully wish to amend and revise my remarks earlier on the thread. I ain’t throwing Kitchens under the bus. Yet. But in baseball parlance, he’s got two strikes now. That being said, dissent or not, people will formulate their ideas based upon his opinions as a sitting Justice. And I disagree with the notion that people that aren’t experts, close to being experts, or probably even know an expert, are allowed to testifiy as to what is good and proper and be allowed to offer an “expert” opinion. Especially since the “experts” words could be used to decide someone’s fate and fortune.
While it may be legally correct to do so, IMO it’s morally and ethically problematic for them to be allowed to comment or testify on the actions of someone just trying to do the “right thing.” Especially when money is involved. A bought-and-paid-for-arm-chair-never-got-to-play-in-real-life quarterback is worse than a prostitute to me. At least it can be argued that the prostitutes are performing a public service. My apologies to the prostitutes for the comparison.
I just think the standard should be that the expert witness have a clue as to what the “Standard of Care” actually is before they open their mouth. Not too much to ask from my point of view.
This one dissent is 2 strikes? Or are you thinking about another opinion, too?
It was both the drunk driving-Goodyear tire case, this case, AND a case involving child support and Canada. Seems like the name was Kern, like the Mason jar as I remember. I’m looking for it now. I’m just mildly disappointed, but not irreparably so. But then again, bless his heart, maybe he’s like us, trying to sort it all out. Maybe I should quit while I’m ahead and get off of him. Maybe I set my sights too high. The good Lord knows Jim Smith wasn’t my cup of tea. But then again, I’m not a lawyer so what do I know about the law. Mine is just visceral emotion and not cognitive understanding. Back to the peanut gallery I go.
The Canadian child support case, DHS V. SHELNUT (772 So.2d 1041) is located at this link http://tinyurl.com/chnqy8
No apparent bones to pick in DHS V. SHELNUT (772 So.2d 1041) IMHO.
That one’s unanimous, and only got a passing reference when I noted the decision. Randolph wrote the majority (and only) opinion.
One of the things I like most about reading this blog is being called out if you misspeak or get your facts wrong. I mis-remembered the exact case.
The link at the top of the page I recalled reading merged in my memory or I dreamed it was connected in some way. The Canadian case was evidentially the one that most prominently stuck in my head. And it had nothing to do with anything I cared about.
Next time I’ll be a little more sure of my memory/facts before offering an opinion. Drive-by reading and shooting-from-the-hip commenting doesn’t always work well together as evidenced by my earlier comment.
RazorR, if it’s any consolation, you were really close on the medicine, and on the nose with the quarterback comparison.
It was both the drunk driving-Goodyear tire case,
Kitchens was plaintiff’s counsel on that case, which appeal was handled by the court of appeals. Can’t hold that one against him.