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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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