This case is interesting for three reasons: The plaintiff engaged the wrong kind of expert; despite that fact, the jury returned a plaintiff’s verdict, which was reversed on appeal; and the opinion provides a useful explanation, which I have not seen before, of what makes an expert’s opinion “speculative, conclusory, and without a proper evidentiary foundation.”
Mobile Infirmary Association v. Fagerstrom (Ala. No. SC-2023-0355, 11/17/2023) is a medical malpractice / wrongful death case. The plaintiff’s decedent, an 85-year-old woman, had successful surgery to remove a benign brain tumor. Unfortunately, she suffered a host of postop complications that ultimately led to her death:
Sylvia [the decedent] did not recover as hoped. Instead, she became malnourished and lethargic, had trouble speaking, and developed high blood pressure and a blood clot. She also suffered…toxic metabolic encephalopathy and a recurring urinary tract infection that was particularly resistant to antibiotics.
…Sylvia also developed a pressure injury on her sacrum…which progressed to a Stage 3 pressure ulcer…. The plaintiff asserts that nurses at MIMC [Hospital] breached the applicable standard of care and caused her pressure injury by not turning her frequently enough in her hospital bed. [Sylvia] was transferred to a nursing home, where her ulcer apparently began to heal. Thereafter, she was admitted to Thomas Hospital and her injury progressed to a Stage 4 pressure ulcer. The plaintiff asserts that…the nurses [at Thomas Hospital], like the nurses at MIMC…failed to turn her frequently enough.
After her stay at Thomas Hospital, Sylvia was transferred to a second nursing home, where, according to the plaintiff's expert witness, her ulcer became infected. Sylvia was then transferred back to Thomas Hospital and, after further treatment, returned to the second nursing home, [where] she died…approximately three and one-half months after her brain surgery….
The plaintiff's expert witness, Dr. David Seignious, testified that the defendants' alleged breaches of the standard of care caused Sylvia to develop the ulcer, which became infected and led to a bone infection, which caused sepsis that resulted in Sylvia's death.
Dr. Seignious is a primary care physician, board certified in internal medicine and geriatrics. On appeal, the defendants did not contest his opinion that the nurses breached the standard of care and that the resulting pressure ulcer became infected. Rather, they asserted that “[his] opinion that Sylvia died from sepsis caused by her ulcer was based on mere speculation instead of ‘objective data’ obtained from medical testing, such as measurements of Sylvia's pulse, respiration, blood pressure, and body temperature.” Therefore, said the defendants, his opinion did not constitute sufficient evidence of causation to submit to the jury.
Dr. Seignious testified that there were insufficient objective data (vital signs taken during the days preceding Sylvia’s death) in the record. Consequently,
he based his opinion that Sylvia died from sepsis resulting from her infected ulcer on what he claimed was the typical progression and end result of the sort of infection Sylvia had. But, as the defendants point out, results from several medical tests performed on Sylvia at the second nursing home and in hospice care multiple times every day during the 10 days before she died did indeed reveal a significant number of objective vital signs for each of those days, including Sylvia's pulse, respiration, blood pressure, and body temperature. Dr. Seignious, however, apparently was unaware of those records before the trial. (Emphasis added. Why the plaintiff’s expert was unaware of the relevant records before the trial is a question I will not address.)
The defendants’ experts were an infectious diseases specialist who had personally treated Sylvia, a wound care expert, and the physician who prepared Sylvia’s death certificate. The ID and wound care experts testified that Sylvia’s vital signs leading up to her death established that she did was not septic when she died. “To the contrary…[she] did not have a fever, her blood pressure was stable, and her heart rate was not unusually high.” The physician who prepared the death certificate “opined that Sylvia died from renal failure with contributions from deep-vein thrombosis, coronary artery disease, valvular heart disease, and malnutrition.” There was no mention of sepsis on the death certificate.
If, as seems to be the case, the plaintiff could only afford one expert, it clearly should have been a specialist in infectious diseases or wound care. One might reasonably suppose that such an expert would have concluded, based on the vital signs data in the records, that there was no causation, in which event the plaintiff would not have brought suit. But if such an expert had opined that there was in fact evidence of sepsis at the time of Sylvia’s death, there would have been a legitimate causation issue to submit to the jury. And if the jury had credited that testimony (as it had credited Dr. Seignious’s testimony), a verdict for the plaintiff would not have been reversed on appeal, which is what happened here.
I conclude with the court’s thoroughgoing explanation of why it agreed with the defendants that Dr. Seignious’s testimony was “conclusory, speculative, and without a proper evidentiary foundation”:
The opinions of an expert may not rest on mere speculation and conjecture. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. An expert witness’s opinion that is conclusory, speculative, and without a proper evidentiary foundation cannot create a genuine issue of material fact. Evidence indicating that an injury could have occurred a certain way is not sufficient; the proof must support a reasonable inference that the injury did occur as alleged. (Emphasis in original; citations, internal quotation marks and brackets omitted.)
As the defendants note in their brief to this Court, “Dr. Seignious’s testimony concerned what he thought potentially might happen in a so-called projected, normal course, but it is undisputed that every other physician who reviewed what actually happened – the objective data in the vital signs – unanimously and conclusively testified that [Sylvia] did not die of sepsis.” Thus… Dr. Seignious's opinion was not supported by a proper evidentiary foundation, was conclusory and speculative, and did not justify submitting the issue of causation to the jury. (Emphasis in original.)
