Mary Thomas sought medical assistance for extreme back pain. A doctor diagnosed severe spinal cord compression. Two days later, she consulted with Dr. Adam Lewis, a neurosurgeon, who recommended surgery to fuse her cervical vertebrae.

After Dr. Lewis performed the surgery, Thomas suffered from quadriparesis, a condition characterized by weakness, but not complete paralysis, in all four limbs. Dr. Lewis performed a second surgery in an effort to relieve the condition, but the effort failed to restore full functionality to her arms and legs.

Thomas sued Dr. Lewis for malpractice. Thomas alleged that Dr. Lewis failed to manage her blood pressure, negligently allowing it to drop during the first surgery. She contended that a drop in her arterial blood pressure caused her quadriparesis. She also alleged that Dr. Lewis’ decision to perform the second surgery was negligent.

Standard of Care Evidence

Thomas based her proof on the expert testimony of a neurosurgeon, Dr. Neil Wright. Dr. Wright identified the appropriate standard of care and testified that Dr. Lewis departed from that standard.

Before the jury heard from Dr. Wright, the defense made a Daubert challenge to the admissibility of his testimony. The trial judge allowed the defense to question Dr. Wright outside the presence of the jury. The judge then decided that Dr. Wright’s testimony as to the standard of care concerning the first surgery was unreliable. The judge therefore excluded that testimony.

The judge allowed Dr. Wright to testify that the decision to perform the second surgery was negligent. After listening to that testimony, however, the judge decided that the evidence failed to establish a breach of the standard of care. The judge therefore directed a verdict in favor of Dr. Lewis.

Daubert in Mississippi

Mississippi follows the usual rule that requires a plaintiff alleging medical malpractice to present expert evidence that establishes a breach of the appropriate standard of care. The question before the Mississippi Supreme Court was whether the trial judge erred by excluding the standard of care evidence offered by Dr. Wright.

The application of Daubert to medical malpractice continues to challenge courts. Unlike chemistry and physics, medical science is inexact. The applicable standard of patient care is a matter of evolving consensus. It is not determined by experimental outcomes with known error rates.

In an earlier case, the Mississippi Supreme Court ruled that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.” That ruling is a clear departure from Daubert and its progeny, which rejected the concept that acceptance within the scientific community controls the admissibility of expert opinions.

The Daubert standard focuses on reliability, not on whether other experts agree with a proffered expert. A departure from generally accepted opinions is relevant to a reliability analysis, but not dispositive. The Mississippi Supreme Court did, however, note that there is no requirement that an expert’s opinion be supported by peer-reviewed articles, although it appears to have made an exception to that rule when an opposing position is arguably supported by peer-reviewed literature. In that situation, the flexible reliability analysis fashioned in Daubert seems to be trumped by a rigid requirement that an expert’s opinion must be supported by peer-reviewed literature.

Court’s Daubert Analysis

In the Thomas decision, the state supreme court first addressed a claim that the defense should have filed a Daubert motion before trial, rather than ambushing Thomas by asking to voir dire Dr. Wright during the trial before his testimony began. While the procedural rules in some jurisdictions require Daubert issues to be resolved in a more orderly fashion, Mississippi allows defendants to reserve their challenges to expert testimony until the expert is poised to testify. The supreme court’s analysis of that rule amounts to “that’s how we do it in Mississippi.”

Moving to the merits, the court concluded that Dr. Wright’s standard of care testimony regarding the first surgery was unreliable because it was “inconsistent with the medical literature.” The court did not identify that literature, so the conclusion is difficult to evaluate.

The court noted that Dr. Wright relied on literature of his own — an article published in Neurosurgery Focus — but the court concluded that the article did not establish a standard of care for managing blood pressure during neurosurgery. While the court focused on the authors’ conclusion that more studies are needed, the article’s abstract identifies several “treatment options, including maintenance of mean arterial blood pressure > 80 mm Hg,” that are designed to improve treatment outcomes. The court’s focus on the article’s statement that no “ideal” mean arterial blood pressure has been identified hardly supports its conclusion that the article identifies no standard of care.

Dr. Wright opined that articles discussing mean arterial blood pressure relied upon by the defense are irrelevant because they address surgeries involving spinal cord injuries, not surgeries involving spinal cord compression. The supreme court’s dismissive view of that opinion illustrates a key problem that arises when courts try to second-guess experts under the guise of “gatekeeping.” Dr. Wright is a neurosurgeon. He is in a better position to evaluate medical literature than state supreme court justices who have no medical training. There is, in fact, no reason to think that judges are better than jurors at evaluating medical evidence.

The court also rejected Thomas’ argument that Dr. Wright’s opinion was supported by a treating physician’s testimony that higher blood pressure is required to force blood into the confined space caused by a cervical disc herniation with stenosis. The court determined that expert testimony by the treating physician was “improper,” but whether or not it was improper, the trial court admitted it, making it evidence in the case.

More importantly, information that confirms the reliability of an expert’s opinion does not need to come in the form of admissible evidence. The state supreme court confused the concept of admissible testimony with the concept of information that supports or refutes the reliability of an expert’s opinion. After all, the articles that the supreme court found to be helpful were inadmissible hearsay, but the court relied on them anyway.

In the end, the court’s contention that Dr. Wright’s conclusions are not “reliable,” despite his reasoned explanation of those opinions and the existence of evidence to support them, amounts to a conclusion that Dr. Wright’s testimony was less credible than competing evidence. But even in Mississippi, credibility determinations are for juries, not judges, to make. Unfortunately, juries can only undertake that function when judges let them hear relevant expert testimony. When judges instead protect the medical industry from malpractice claims, juries are denied the opportunity to consider the valuable guidance that medical experts provide.