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Baeverstad: Does M.D. allow expert to rely on junk science?

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dtci-baeverstadA patient comes to the hospital and receives twice the amount of thrombolytics ordered by the cardiologist. The thrombolytics have a risk of causing hemorrhagic stroke. Two days later, the patient strokes and dies. The treating cardiologist is of the opinion that the stroke was caused by the excessive dose given to the patient. Does this seem like a “no brainer” on causation?

But what if a peer-reviewed case control study found no statistical difference in the risk of stroke between the amount ordered by the cardiologist and the amount mistakenly given to the patient? What if this same scientific study changed the practice of medicine to the extent that patients now receive the dose of thrombolytics mistakenly given to the patient? In that situation, can the cardiologist’s opinion on causation past muster under Daubert and Rule 702 of the Indiana Rules of Evidence?

It was this precise issue that was addressed in the case of Akey v. Parkview Hospital, 941 N.E.2d 540 (Ind. Ct. App. 2011), trans. denied, 2011 Ind. LEXIS 522. There, in response to 89-year-old Akey’s heart attack, the cardiologist told the emergency physician to give Akey one-half dose of the thrombolytic, TNKase, and one-half dose of ReoPro. Due to a communication breakdown between the emergency department physician and the nurses, Akey received the one-half dose of TNKase but also received, instead of ReoPro, a one-half dose of another thrombolytic, Retavase. Two days later, Akey stroked and died.

Several years later, a peer-reviewed case control study (GUSTO-V) compared the risk of stroke in patients who received a one-half dose of a thrombolytic along with ReoPro to the risk of stroke in patients who received a full dose of a thrombolytic without ReoPro. The study found that, in patients over 75 years of age, the risk of an intracranial bleed was statistically insignificant. Based upon that study, cardiologists abandoned the practice of giving patients a one-half dose of a thrombolytic with ReoPro and began giving patients full doses of a thrombolytic with no ReoPro.

Despite the treating cardiologist acknowledging the authority of the GUSTO-V study and that it changed the way he practices cardiology, he held fast to his opinion that the dosing error caused Akey’s stroke. He could not cite to any study that supported his opinion.

Rule 702 (b) of the Indiana rule of Evidence reads: Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

This is commonly known as the “gatekeeper” provision in which the trial court is charged with the responsibility of ensuring that expert opinion testimony that is based upon junk science is excluded. Based upon the Akey decision, one must question whether this rule applies at all to the opinions of licensed physicians. One cannot think of a situation where the opinions of an expert physician are more directly refuted by a reliable scientific study, yet the trial court was reversed in its determination that the opinions failed the requirements of Rule 702(b).

One would think that the standard of review for a judge’s role as gatekeeper under Rule 702(b) would be the same regardless of when the issue is raised. In Akey, this issue was raised in a motion for summary judgment. Given the extreme difficulty defending summary judgment on appeal, defense counsel may opt to raise this issue in a motion in limine where the standard of review is an abuse of discretion.•

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Mark Baeverstad
is a partner in Rothberg Logan & Warsco and is a member of the DTCI Board of Directors. Baeverstad represents Parkview Hospital in Akey v. Parkview Hospital. The opinions expressed in this article are those of the author.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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