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Medical Malpractice

L AW J O U R N A L NEWSLETTERS

Law & Strategy

®

Volume 23, Number 6 · March 2006

New Jersey's Highest Court Admits Expert Testimony

Treating Physician's Differential Diagnosis Admissible on Proximate Cause Issue

By Eric L. Probst

he New Jersey Supreme Court, in Creanga v. Jardal, 185 N.J. 345 (2005), recently held that a treating physician's expert testimony on proximate cause is admissible if based on a reasonably conducted differential diagnosis that rules out plausible alternative causes of a plaintiff's injuries. However, a treating physician's expert testimony will be struck as a net opinion when the physician's differential diagnosis is based on subjective beliefs instead of the patient's medical history and diagnostic testing.

T

THE CASE

In Creanga, plaintiff Mihaela Creanga sued Lucent Technologies, claiming her automobile accident with a Lucent employee was the proximate cause of the premature labor that led to the death of one of her twin sons. Plaintiff was 36-years-old and 24 weeks pregnant with twin boys at the time of the accident. Two days after the accident, Ms. Creanga experienced vaginal bleeding and contractions, and believed she was in labor. She went to a local emergency room where the emergency room physician confirmed that she was, in fact, in labor. When the emergency room physician could not stop plaintiff's labor, he called her primary care physician, Dr. Faramarz Zarghami. He, too, was unable stop

Eric L. Probst, Esq., a member of this newsletter's Board of Editors, is counsel to Porzio, Bromberg & Newman, P.C., in Morristown, NJ.

plaintiff's labor. Ms. Creanga then delivered one twin, who died shortly after birth. Following the delivery, Dr. Zarghami was finally successful in stopping plaintiff's labor, allowing the second twin to be born healthy, at full term. At a subsequent doctor's visit, Dr. Zarghami told plaintiff that he believed the premature delivery was "from the accident." Based on this statement, plaintiff named Dr. Zarghami as an expert witness. At his deposition, the doctor testified how he determined the accident caused the premature labor and wrongful death of one of the twin boys. First, he obtained Ms. Creanga's medical history, including the facts of the accident. He then considered the possible causes of premature labor: pre-eclampsia, trauma, high blood pressure, and infection. He also considered her age, her three previous abortions, and the increased risk of miscarriage due to multiple gestation. After reviewing plaintiff's medical history, he testified that he had determined within a reasonable degree of medical certainty that the accident was the sole cause of the premature labor and subsequent miscarriage. On cross-examination, the defense asked Dr. Zarghami whether plaintiff suffered from an incompetent cervix, because her own mother had experienced 11 miscarriages. The doctor acknowledged cervical incompetence as a cause of miscarriage, but ruled it out because plaintiff's first pregnancy demonstrated that her cervix was

competent to handle a pregnancy and her mother's medical history was irrelevant in this context. The defendant moved for summary judgment, which was denied. It then filed a motion in limine striking Dr. Zarghami's testimony as a net opinion -- an opinion based on subjective beliefs and not on facts. The trial court granted the motion in limine and dismissed the complaint. The Appellate Division affirmed.

APPEAL TO THE NJ SUPREME COURT

The Supreme Court overruled the lower courts' decisions and held a trial court may admit a treating physician's differential diagnosis into evidence on causation provided the physician has conducted a comprehensive review of the plaintiff's condition and history. However, the court cautioned that the proffered expert testimony must be based on facts and not the doctor's subjective beliefs, or it will be subject to exclusion as a net opinion. The court first determined whether Dr. Zarghami's testimony was sufficiently reliable to allow him to testify. The first part of the court's analysis focused on the legal definition of a "differential diagnosis." While medicine defines a differential diagnosis as the methodology used to determine the condition the patient is suffering from, courts define it as the "process by which causes of the patient's condition are identified." Id. at 356 (quoting Clausen v. M/V New Carisoa, 339 F.3d 1049 (9th Cir. 2003)).

LJN's Medical Malpractice Law & Strategy

March 2006

The court then outlined the two-step process the treating physician must engage in to identify the cause before the differential diagnosis can be used to establish proximate cause. A properly conducted differential diagnosis examines "competing" causes of the patient's symptoms. The physician has to "rule in" all plausible causes for the patient's condition by compiling a "comprehensive list of hypotheses that might explain the set of salient clinical findings under consideration." Id. (quoting Clausen, 339 F.3d at 1057). A diagnosis is not properly conducted when it includes conditions or diseases incapable of causing the patient's symptoms, or excludes ones that are "plausible hypotheses" for the patient's current medical condition. After "ruling in" plausible causes, the physician must then "rule out" the plausible causes that are not causing the symptoms. The expert must engage "in a process of elimination, eliminating hypothesis on the basis of a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in that particular case." Id. (quoting Clausen, 339 F.3d at 1057-58). The doctor must substantiate the diagnosis with diagnostic testing before the court will allow the doctor to testify. Finally, the court recognized the medical community's reliance on differential diagnoses, and the state and federal courts' acceptance of it as evidence, including in New Jersey toxic tort cases. See Rubanick v. Witco Chem. Corp., 125 N.J. 421, 450-451 (1991) (In toxic-tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field). Thus, the court held that a trial court can admit a treating physician's differential diagnosis testimony into evidence on proximate causation. The court applied these standards to the case, and held the trial court should have admitted Dr. Zarghami's testimony. The court noted that the physician first "ruled in" several possible causes of

premature labor -- pre-eclampsia, high blood pressure, trauma, infection, the plaintiff's abortions, and her mother's miscarriages. Then he "ruled out" all causes but the accident. The doctor explained that the plaintiff's previous abortions did not scar her cervix, as evidenced by the uneventful birth of her first child, and that the higher incidence of miscarriages common with twins was diminished by the fact that the plaintiff was 24 weeks pregnant. After he excluded the other causes, Dr. Zarghami then concluded that the most likely cause was the accident. Thus, the court found that Dr. Zarghami properly conducted the differential diagnosis and could testify. The court also analyzed whether Dr. Zarghami's conclusions were based on his subjective beliefs, or medical facts obtained during his examination of the plaintiff. The court agreed with the appellate division's concern that Dr. Zarghami's diagnosis lacked information about whether Ms. Creanga suffered an injury to her abdomen in the accident. However, the court remarked that the differential diagnosis process allows the physician to consider all possible causes, and that Dr. Zarghami reasonably determined that no other causes existed to precipitate a premature labor. Further, the temporal component of the trauma bolstered the doctor's conclusion that the accident caused her premature labor and miscarriage. Thus, his differential diagnosis was based on objective facts -- plaintiff's medical history, the medical records, and his medical experience -- and obtained during a comprehensive review of the plaintiff's condition.

W HAT THIS MEANS

The court's decision is not a green light for plaintiffs to use treating physicians as expert witnesses to establish causation. Plaintiffs' counsel must ensure that the treating physician has conducted a thorough examination of the plaintiff, relied upon the medical records, and considered all plausible causes of the plaintiff's symptoms before determining the cause of the plaintiff's condition. The "rule in-rule out" process should be evident in the medical

records. Before the decision is made to retain a treating physician as an expert, counsel should ask the treater whether, in hindsight, a plausible cause for the plaintiff's symptoms was not included in the differential diagnosis. As the Creanga case provides, such a failure may result in a successful motion in limine. Further, if the treating physician included causes unsupported by medical literature (and other treating doctors), the differential diagnosis may be deemed unreliable and the doctor's methodology unsound under Rubanick. Defense counsel should not panic. The court has not changed the analysis a trial court applies when evaluating the reliability of a treating physician's opinion. However, counsel should be more vigilant and careful when reviewing medical records of treating physicians to ensure the doctor conducted a reasonable diagnosis. Defense experts will be needed to examine whether the differential diagnosis was properly conducted. Additionally, when the physician produces a report under R. 4:17-4(e), counsel must determine whether the report contains opinions not contained in the differential diagnosis. If so, the defendant has a strong argument that the differential diagnosis should not be admitted. Like counsel in Creanga, the defense must attack the treater's methodology and conclusions at deposition and be prepared to file a motion in limine and/or summary judgment motion. Creanga is an extension of current New Jersey law on the admissibility of expert testimony. While the decision allows plaintiffs to more freely use their treating physicians as experts at trial, the court provided defendants enough safeguards to challenge the reliability and admissibility of differential diagnoses when used to establish proximate causation.

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This article is reprinted with permission from the March 2006 edition of the LAW JOURNAL NEWSLETTERS MEDICAL MALPRACTICE LAW & STRATEGY. © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact ALM Reprint Department at 800-888-8300 x6111 or visit www.almreprints.com. #055081-03-06-0011

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