By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services; Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
News: In a recent medical malpractice lawsuit involving a complicated delivery resulting in a newborn’s injury, the plaintiff was granted a new trial after the defendant physician’s expert was found to have engaged in “speculation and conjecture.” The state appellate court ruled that while the defendant’s expert was qualified to offer an opinion on general causation, the expert was not qualified to testify on whether the plaintiff’s injury was, in fact, caused by that process. The case was thrown out, and a new trial ordered. This case is a reminder to potential expert witnesses that courts take seriously their gatekeeping role to prevent unreliable opinion testimony, especially in jury trials, and any expert testimony must be reliable and trustworthy.
Background: On April 9, 2019, a physician induced a pregnant woman’s labor. Complications arose during delivery when the baby’s shoulder became stuck behind his mother’s pubic bone, leading to a condition known as shoulder dystocia.
The physician unsuccessfully attempted various obstetric maneuvers, including trying to deliver the baby’s left arm to dislodge the right shoulder and rotating the baby’s shoulders. An episiotomy was performed to allow another physician to deliver the child. The baby was born not breathing and without a heartbeat after he was stuck for at least five minutes and was resuscitated. It was later confirmed the baby suffered damage to nerves called the brachial plexus, resulting in complete and permanent paralysis in his right arm.
The mother filed a lawsuit, alleging the physician’s management of her labor and delivery caused the baby’s shoulder dystocia and the subsequent brachial plexus injury. The trial revolved around conflicting expert opinions. The plaintiff’s medical experts claimed the physician’s excessive lateral traction on the baby’s head caused the injury, while the defendant’s expert argued maternal forces played a significant role.
The defense presented a biomechanical engineer who used a computer model simulation that studied the mechanics of shoulder dystocia and its effects on the brachial plexus. Based on the model, the expert opined the baby’s injury stemmed primarily from maternal forces during delivery, with a smaller contribution from the physician. Two other defense experts, both OB/GYNs, also supported the causal link between maternal forces and brachial plexus injuries. The jury did not find the physician liable.
On appeal, the court ruled the expert’s general causation opinion admissible, noting she is qualified as a biomechanical engineer and her extensive study on the forces involved in shoulder dystocia supported her opinion that maternal forces alone can cause a brachial plexus injury in certain infants. But the court found the expert’s specific causation opinion should have been excluded because her opinion about the cause of this specific injury went beyond her expertise. The expert’s testimony lacked sufficient facts and data about the baby’s delivery and relied on speculation and conjecture. For example, the expert did not know specific information about the mother’s physiology, including her pelvis size, which is necessary to form this opinion. Moreover, the expert testified her computer simulation uses the same size infant and model mother every time, and thus it was ill-equipped to apply to any specific scenario, including in this case.
What This Means to You: Shoulder dystocia is a frequent occurrence during labor when the fetus has a military presentation or a head circumference that is larger than the mother’s pelvic arch, and other such anatomical issues. Prenatal care, along with accurate maternal histories and accurate fetal weight measurements, help predict the likelihood of a potential dystocia occurring during labor. There are multiple preparatory steps the delivery room staff will take to ensure all equipment and staff are in place to assist with standard dystocia procedures to free the affected shoulder and quickly release pressure from the fragile nerves and tendons in the infant’s shoulder. If the umbilical cord also is entrapped, these steps must be taken emergently. After delivery, all actions are carefully documented in the patient’s record so validation of efforts made show the standards of care for this event have been met. Despite everyone’s best efforts, dystocias will sometimes occur. But if the standards are followed, less harm may result, and litigation for the defense has support. Additionally, the informed consent that mentions the possibility of dystocia should be in the medical record of all high-risk mothers. The expert witness must consider these issues to provide the client with the best possible testimony.
This case also shows how expert testimony plays a crucial role in establishing the cause of injuries and determining liability in medical malpractice litigation. It also highlights the importance of selecting an expert who is not only qualified to offer an opinion on general causation, but one who is qualified to offer an opinion on specific causation. The difference between the two is the difference between a favorable verdict and a retrial.
This case shows the admissibility of expert testimony is and will remain subject to stringent criteria, and that courts continue to take their gatekeeping role seriously to only admit reliable testimony.
First, expert qualifications are key. The admissibility of expert testimony depends on the qualifications of the expert witness. Medical professionals serving as expert witnesses should possess the necessary knowledge, skill, experience, training, or education to render opinions in their area of expertise. In this case, the court found the expert qualified to give a general causation opinion based on her background as a biomechanical engineer. Yet, the court found the expert was not qualified to testify on specific causation. Any expert considered for trial must demonstrate their qualifications and expertise in the specific medical field relevant to the case.
These concerns are heightened when a party relies heavily on one expert for its prosecution or defense. Here, for example, the biomechanical engineer’s expert testimony was the only defense evidence suggesting the baby’s injury was caused by maternal forces rather than physician error. Although the defense offered two OB/GYN experts who agreed on a causal link between maternal forces and brachial plexus injury, neither could offer an opinion about the specific case. The trial court’s decision to allow that testimony required a new trial.
Second, in addition to expert qualifications, the reliability of expert testimony is paramount. Opinions must be based on sufficient facts and data, and the expert should reliably apply their methods to the specific facts of the case. In this case, “the complete lack of information regarding the key elements of the situation results in an opinion that is substantially the product of assumptions and conjecture.” For example, the expert here “did not know the size or shape of [the mother’s] pelvis or the number of maternal forces involved in this delivery,” and even “testified that it is not possible to measure the maternal forces that were exerted during [the baby’s] delivery at this point.” The court emphasized the need for experts to avoid conjecture or speculation, ensuring their opinions are well-founded on substantial information.
Third, the case also brings to light the distinction between general causation and specific causation opinions. General causation refers to whether an injury can be caused by a certain process, whereas specific causation pertains to whether the plaintiff’s injury was caused by that process, and the reasons for that.
In medical malpractice cases, experts must be careful when providing specific causation opinions outside their area of expertise because courts are likely to look closely at whether the expert had considered enough specific information to reach that conclusion. Counsel must be careful to ensure their experts are qualified to offer those specific causation opinions in the first place.
Finally, the case instructs that medical experts should confine their specific causation opinions to areas within their medical expertise. While the expert’s general causation opinion was admissible due to her background as a biomechanical engineer, her specific causation opinion was deemed inadmissible as it delved into medical areas beyond her qualifications. The case highlights how there are real limits to one’s expertise.
This case is a reminder that expert witnesses should be well-qualified in their respective fields and ensure the reliability of their opinions. Even if offered the opportunity to testify on certain matters they have spent years studying, a potential expert witness should be sure they are comfortable with, and can defend, an opinion about the specific factual issue the jury must decide — not merely the general subject matter. Otherwise, they, too, may be found by a court to have offered an opinion “that is substantially the product of assumptions and conjecture.”
REFERENCE
- Decided July 18, 2023, in the Missouri Court of Appeals, Eastern District, Case Number ED110991.
This case shows how expert testimony plays a crucial role in establishing the cause of injuries and determining liability in medical malpractice litigation. It also highlights the importance of selecting an expert who is not only qualified to offer an opinion on general causation, but one who is qualified to offer an opinion on specific causation. The difference between the two is the difference between a favorable verdict and a retrial.
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