In Samaan v. St. Joseph Hospital, 2012 WL 34262 (1st Cir. Jan. 9, 2012), plaintiff suffered a stroke while flying from Milan to New York and was treated at a hospital in Maine after his flight was diverted there. At the hospital, doctors did not administer an intravenous dose of tissue plasminogen activator (t-PA), a drug designed to reduce neurologic injury from stroke, and plaintiff was partially paralyzed and unable to work. He sued the hospital and attending physician in Maine state court alleging professional negligence for failing to administer t-PA, which plaintiff alleged proximately caused him harm by diminishing his chances of stroke recovery.
Defendants removed the action to the United States District Court for the District of Maine, and thereafter moved to exclude the testimony of plaintiff’s expert under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and for summary judgment. Daubert requires the proponent of expert testimony to demonstrate both its reliability, and its relevance or “fit” to the legal issues.
Defendants argued Maine law requires a medical malpractice plaintiff to prove the alleged negligence was “more likely than not” a substantial cause of the injury, while plaintiff argued Maine would recognize the “lost chance” doctrine and permit recovery whenever a patient’s chances are diminished to some degree by a doctor’s negligence. The district court held Maine had not adopted the “lost chance” doctrine and excluded the expert’s testimony on the ground that his statistical calculations, which were tailored to the “lost chance” theory, did not address whether failure to administer t-PA more likely than not caused plaintiff’s disability. Thus, although the court did not seriously question the expert’s qualifications or the reliability of his methodology, his testimony failed to meet the Daubert threshold for “fit” with the governing legal issue. As plaintiff lacked admissible expert opinion on causation, the court entered summary judgment.
On plaintiff’s appeal, the United States Court of Appeals for the First Circuit first agreed with the district court that Maine does not permit “lost chance” recovery. As to the “fit” issue, the expert presented analyses of statistical data from two published studies examining odds ratios between patients who had received t-PA and a placebo group, and concluded from these ratios that a patient’s chances of improvement increased by over 50% with t-PA compared to non-treatment. Based on this, the expert then purported to conclude that plaintiff likely would not have suffered his injuries had he been given a timely t-PA injection.
The appellate court affirmed exclusion of this opinion and the entry of summary judgment. “When a person’s chances of a better outcome are 50% greater with treatment (relative to the chances of those who were not treated), that is not the same as a person having a greater than 50% chance of experiencing the better outcome with treatment. The latter meets the required standard for causation; the former does not.” While the court did not completely foreclose the possibility that relative calculations may suffice in particular circumstances to meet the causation standard, here, the court held, “[t]here is simply too great a divide between the numbers that [the expert] employed and the conclusions that he tried to wring from them.”