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High Court Analyzes Theory of Differential Diagnosis

In an important medical malpractice decision, the Supreme Court reversed the Appellate Court's finding of harmless error when the trial court (Tobin, J.) precluded plaintiff's expert from testifying that the defense theory of causation was wrong. In other words, plaintiff's expert should have been allowed to testify regarding what was and what was not the cause of plaintiff's injuries. Klein v. Norwalk Hospital, 299 Conn. 241 (2010).

Facts: The plaintiff, Eric Klein, a dentist, was in the hospital for an emergency appendectomy. In the post-op period, he needed intravenous antibiotics. On March 3, 2003, Patricia DePaoli, a nurse employed by the defendant Norwalk Hospital, determined that the existing IV line needed changing. She began to replace the existing line in Klein's left hand with a new line farther up his arm. During the procedure, Klein shouted out in pain several times. After DePaoli's third failed attempt, Klein's whole left hand went dead and he told her to remove the needle. Klein's father, Morton, witnessed the entire event. After Klein's release he was diagnosed with anterior interosseous nerve palsy caused by an improper attempted intravenous line insertion. Klein's injury had a negative impact on his dental practice and overall quality of life.

On Jan 11, 2006, the plaintiff disclosed Dr. Gevirtz, an anesthesiologist specializing in pain management, as his expert. According to the disclosure, Gevirtz was to testify on matters concerning the standard of care, causation and damages. The plaintiff's theory of negligence was that DePaoli departed from the standard of care in placing the IV line and that this caused Klein's injuries.

The defendant then disclosed Dr. Strauch, an orthopedic surgeon, to testify that the plaintiff's injury was caused by a condition called Parsonage Turner Syndrome (PST). Gevirtz was not specifically disclosed as an expert on PTS, nor was it disclosed that he would testify about the disease. During his direct examination of Gevirtz, plaintiff's counsel asked him if he was familiar with PTS. The trial court sustained the defendant's objection to this question on the ground that the plaintiff's disclosure of Gevirtz did not encompass his testifying about the syndrome. In a proffer, plaintiff's counsel established that Gevirtz would have described PTS, established his familiarity with it and stated his opinion that the syndrome was not the cause of Klein's injury and explained the basis for that conclusion.

Later in the trial, defense counsel called Strauch to testify on standard of care & causation. At plaintiff's counsel's request, the trial court conducted a Porter hearing to determine what scientific methodology would allow Strauch to diagnose - without an examination - Klein's injury as being caused by PTS. The court allowed Strauch to testify, on the basis of his review of Klein's medical records and deposition testimony that the plaintiff's condition was caused by PTS.

The case was submitted to the jury with interrogatories. The first one asked whether the plaintiff had proven by a preponderance of the evidence that the defendant had breached the standard of care in any way stated in the complaint in her care and treatment of Klein. The jury answered this interrogatory in the negative.

In its decision, affirming the defense verdict, the Appellate Court did not reach the evidentiary issues raised by the plaintiff because it found that any claimed impropriety was harmless.

Supreme Court Decision:

Causation - The plaintiff's disclosure of Gevirtz on the issue of causation was sufficient to permit him to testify that PTS was not the cause of Klein's injury. "Insofar as the plaintiff's disclosure of Gevirtz made clear that he would testify as to what was the cause of the plaintiff's alleged injury, the disclosure implicitly indicated that Gervitz [sic] also could be expected to testify about what was not the cause of the plaintiff's alleged injury. 'Critical to establishing specific causation is exclusion of other possible causes of symptoms.'...As this court recently acknowledged, 'differential diagnosis is a method of diagnosis that involves a determination of which of a variety of possible conditions is the probable cause of an individual's symptoms, often by a process of elimination. In the present case, Gevirtz was permitted to testify that, in his expert opinion, the plaintiff's alleged injury 'can only happen as a result of negligence as a result of deviating from the standard of care.' To the extent that this conclusion was the result of Gevirtz' differential diagnosis, it necessarily was based on his consideration and elimination of the other possible causes for the alleged injury, including the theory of causation advanced by the defendant. This court never has articulated a requirement that a disclosure include an exhaustive list of each specific topic or condition to which an expert might testify as the basis for his diagnosis; disclosing a categorical topic such as 'causation' generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category." (Italics in original.)

"A disclosure generally complies with the requirements of Practice Book § 13-4 (4) so long as it adequately alerts the defendant to the basic nature of the plaintiff's case." There was no need for the plaintiff to file a supplemental disclosure.

Harm - Although the court acknowledged some recent confusion concerning the standard of harmfulness in a civil case, it took this opportunity to clarify the standard. An evidentiary ruling will result in a new trial only if the ruling was harmful. An evidentiary impropriety in a civil case is harmless only if "we have a fair assurance that it did not affect the jury's verdict. A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial." Herein, the court concluded that there was "no fair assurance that the evidentiary impropriety did not affect the jury's verdict because the improperly excluded testimony was essential to the central issue in this case and was not wholly cumulative of other testimony or evidence."

The issue of breach of the standard of care was essential to the case, as it was wholly dispositive of the outcome. The court rejected the defense argument that Gevirtz' excluded testimony dealt only with the question of causation and that, therefore, the excluded testimony was irrelevant. The basis for the court's rejection of this argument was that it "fail[ed]...to account for the nature of a differential diagnosis....Because the present case essentially presented a choice as to the causation of the plaintiff's alleged injury between the defendant's theory of Parsonage Turner Syndrome and the plaintiff's theory of an intravenous needle stick, breach of the standard of care and causation were intertwined not only in Gevirtz' differential diagnosis, but also in the framing of the case generally. The determination of whether the defendant had breached the standard of care could be reduced to the question of what caused the plaintiff's alleged injury, and the only possible causes presented to the jury were Parsonage Turner Syndrome or the defendant's alleged breach of the standard of care. Consequently, whether Parsonage Turner Syndrome could have caused the plaintiff's alleged injury was therefore central to the question of not only causation, but breach as well."

The court also noted that, "it is significant, in our view, to consider that Gevirtz' excluded testimony also would have aided in establishing his credibility as an expert and the reliability of his ultimate conclusions in the eyes of the jury. In other words, but for the trial court's improper exclusion, Gevirtz could have explained not only that he had rejected the defense theory of Parsonage Turner Syndrome as a cause, but also why he had done so."

Porter: Finally, the court addressed the Porter issue raised by the plaintiff because it was likely to arise on retrial. That issue concerned a claim that the trial court improperly admitted expert testimony by Strauch, regarding the cause of Klein's injury. Strauch was permitted to testify, solely on the basis of his review of the plaintiff's medical records and deposition testimony, that the plaintiff's injury had been caused by Parsonage Turner Syndrome. The plaintiff contended that, under State v. Porter, 241 Conn. 57 (1997), cert. denied, 523 U.S. 1058 (1998), the defendant did not sufficiently demonstrate that Strauch's opinion was based on reliable methodology. The Supreme Court concluded that the trial court's admission of that portion of Strauch's testimony was improper.

During the plaintiff's voir dire of Strauch at the Porter hearing, Strauch acknowledged that diagnosis by review of medical records would not be his normal method of diagnosis, that the only peer review of the method he used was a single article that considered diagnoses made both by examination and by consideration of medical records, and that he could not speculate as to the rate of error in diagnoses by this method.

The Supreme Court concluded that, although the trial court conducted a Porter hearing to consider the admissibility of Strauch's testimony, the defendant did not demonstrate at the hearing the reliability of the methodology upon which Strauch relied. "Notably, the defendant made no showing that Strauch's methodology had been subjected to peer review, nor was Strauch able to identify a likely rate of error for his chosen methodology. While neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their absence is, in this case, determinative of the inadequacy of the defendant's proof of the methodology's reliability...Without these or any other meaningful indicia of reliability, Strauch's conclusion was without basis in an assuredly reliable methodology; without any stated support for its reliability other than his own personal expertise, it was nothing more than his ipse dixit."