Can trial courts block physicians’ expert witnesses from testifying in medical liability cases? One Wisconsin court recently did, leaving it to the court of appeals to decide whether a physician defendant has the right to present expert testimony that differs from that of the plaintiffs.
At stake in Bayer v. Dobbins was whether trial court had properly excluded expert testimony regarding injuries to a newborn that had resulted in complications in the birthing process.
Leah Bayer was delivering her child under the care of Brian D. Dobbins, MD, when the progress of the delivery slowed and she began to show signs of exhaustion. Dr. Dobbins made the decision to use a vacuum to advance the child down the birth canal.
The child’s shoulder became stuck inside the canal, causing shoulder dystocia, a condition in which the fetal shoulder becomes lodged on the maternal pelvis. A shoulder dystocia is considered an emergency because it can lead to compression of the umbilical cord, which can compromise blood flow and oxygen supply to the child.
After using two “traction” maneuvers, Dr. Dobbins was able to successfully deliver the child. But the child had reduced movement of her right arm and was ultimately diagnosed with a permanent right brachial plexus injury—which severely limited her ability to use her right arm and hand.
The Bayers sued Dr. Dobbins, claiming that he had used excessive traction during the delivery. Dr. Dobbins contended that he had appropriately used only gentle downward traction to deliver the child and that the injury was caused by maternal forces of labor, including the forces associated with contractions and pushing.
In support of Dr. Dobbins’ medical care, the defense tendered as expert witnesses four well-known medical scientists whose testimony was supported by dozens of peer-reviewed medical studies. Many of the studies had been published by or were connected with the American College of Obstetricians and Gynecologists (ACOG). One of the studies Dr. Dobbins proffered as evidence concluded that the condition “has been shown to occur entirely unrelated to traction ….” The study was published by ACOG in 2014.
Before the trial began, the Bayers filed a motion asking the circuit court to exclude all expert testimony relating to Dobbins’ theory that maternal forces of labor caused the injury, arguing that the experts’ opinions were unreliable because the Bayers’ biochemical engineering expert had disproved the maternal forces theory in 2007 using a simulator.
The trial court ultimately ruled in favor of the Bayers and excluded the defendant’s expert witnesses. It also determined that the medical literature was “inappropriate” because it did not adequately differentiate between permanent and temporary brachial plexus injuries.
A Wisconsin Court of Appeals granted Dr. Dobbins’ appeal of the order that prevented his expert witnesses from testifying.
Citing the ACOG study, the Litigation Center of the AMA and State Medical Societies and the Wisconsin Medical Society said in an amicus brief, “This resource, which Dr. Dobbins’ experts used to support their opinions, is an example of a systematic review of observational studies. … publications like this represent some of the best evidence available to physicians in medical decision making.”
“This court has the opportunity with this case to provide significant guidance to Wisconsin’s trial courts,” the brief said. “The society can envision no more logical source of determining the reliability of such evidence than medicine’s own standards of reliability.”
Last week, the Wisconsin Court of Appeals ruled that, because competing scientific theories were presented, it was for the jury to decide which of the theories best fit the facts of the case.
“If experts are in disagreement,” the court said in the decision, “it is not for the court to decide ‘which of the several competing scientific theories has the best provenance.’”
As a result of the decision, Dr. Dobbins’ expert witnesses and the medical literature supporting their testimony will be allowed in the case.
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