April 7, 2004

Steven P. Garmisa, Attorney
Hoey & Farina, P.C. 
Personal Injury Lawyers / Wrongful Death Attorneys

Medical diagnosis is part science and part art.

Since we regularly trust our lives to the physicians practicing the art of diagnosis in situations where there are no scientific certainties, it makes sense that doctors get some leeway in the required degree of certainty when testifying about their diagnosis for a plaintiff's medical condition.

Speculation and conjecture are out, but according to the Illinois Appellate Court, "It is permissible for a medical expert to testify concerning his or her opinions in terms of possibilities or probabilities." Matuszak v. Cerniak, 2004 WL 369267 (3d Dist., Feb. 25).

Drawing the line between prohibited speculation and permissible probabilities, the Matuszak court found no abuse of discretion in a case where a doctor's testimony about his differential diagnosis was based in part on "possibilities."

Phillip Matuszak filed a complaint in Will County alleging that he suffered cognitive dysfunction because of oxygen deprivation ("a hypoxic event") when he was given Versed during a colonoscopy.

There was no dispute that Matuszak has cognitive dysfunction, though the defendants denied malpractice in the administration of Versed and pointed to other possible causes of his condition.

The Appellate Court's opinion carefully details the conflicting evidence on the cause of Matuszak's condition. Among other doctors, the jury heard from a defense expert, one Dr. Davidson, whose differential diagnosis concluded that Matuszak did not suffer a hypoxic episode during the colonoscopy.

While Davidson testified that Matuszak had "cognitive dysfunction of unknown etiology," the doctor admitted on cross-examination that he excluded some diagnoses based on "possibilities."

When the jury returned a verdict for the defendants, Matuszak appealed, arguing that the trial judge erred in refusing to bar "speculative" testimony from the defense expert.

Here are some highlights of Justice Mary McDade's opinion affirming the judgment (with various omissions not noted in the quoted text):

"Generally, expert testimony is admissible if the proffered expert is qualified as an expert by knowledge, skill, experience, training or education and the testimony will assist the trier of fact in understanding the evidence. The decision to admit opinion testimony lies within the trial court's sound discretion, and a reviewing court will not reverse its decision absent an abuse of discretion.

"On appeal, plaintiff claims that the trial court should have barred Dr. Davidson from rendering any opinion regarding other possible causes of plaintiff's conditions. Plaintiff does not challenge Dr. Davidson's credentials but instead maintains that his differential diagnosis opinion was not admissible because he failed to rule out other possible causes in reaching his conclusion. We find this argument without merit.

"It is permissible for a medical expert to testify concerning his or her opinions in terms of possibilities or probabilities. The expert may testify to what might or could have caused an injury despite any objection that the testimony is inconclusive. The testimony need not be based on absolute certainty, but only a reasonable degree of medical and scientific certainty. It remains for the trier of fact to determine the facts and the inferences to be drawn from the testimony.

"Our conclusion is consistent with the Illinois Supreme Court decision in Field Enterprises v. Industrial Commission, 37 Ill.2d 335 (1967).

"In Field, the claimant's husband died while working at his employer's factory. One of claimant's medical experts opined that the cause of death was 'organic heart disease of some type and that decedent died of heart failure because of it.'

"Another medical expert, however, testified that the cause of death was an acute coronary episode with a myocardial infarction.

"The employer's medical witness stated that a number of conditions could have caused the decedent's death in view of his medical history. The Industrial Commission found in favor of the claimant and awarded her compensation for her husband's death.

"On appeal, the employer argued that the commission's finding that the decedent died of a heart attack was purely speculation and unsupported by the evidence. The employer maintained that the commission's finding was not proper in that case because the claimant failed to present evidence to negate the other reasonable causes for the decedent's death.

"Our Supreme Court affirmed the finding of the commission, holding that, 'The claimant was not required to negate every other possible cause of death to establish death by reason of a heart attack as a legitimate inference from the evidence.'

"We are also provided direction by decisions of the federal courts addressing the precise issue raised here," McDade continued.

"In Heller v. Shaw Industries Inc., 167 F.3d 146 (3d Cir. 1999), the [3d U.S. Circuit Court of Appeals] held that a medical expert's causation opinion should not be excluded because he or she fails to rule out every possible alternative cause of a patient's medical problem. "In Heller, the plaintiff brought a personal-injury suit against a carpet manufacturer, alleging respiratory problems after its carpet was installed in her home. Plaintiff's medical expert was able to rule out, after conducting a differential diagnosis, various possible causes of the plaintiff's respiratory problems. He also offered a number of plausible alternative causes, including dust from other carpets, benzene and 2-butoxyethanol from other sources, and paint and new hardwood floors in the house.

"The trial court granted the defendant's motion to exclude the expert's testimony because he failed to rule out all alternative possible causes of the plaintiff's illness.

"The [3d Circuit] reversed. Chief Circuit Judge Edward Becker, writing for the majority, reasoned: '[T]o require the experts to rule out categorically all other possible causes for an injury would mean that few experts would ever be able to testify.'

"Judge Becker further explained that the alternative causes suggested by the medical expert only affected the weight that the jury should give the expert's testimony and 'not the admissibility of that testimony.

' "In the instant case," McDade concluded, "we similarly find that the admissibility of Dr. Davidson's opinion does not depend upon his ability to disprove every possible cause of plaintiff's injury. Dr. Davidson gave his opinion, based upon a reasonable degree of medical certainty, that plaintiff's injuries were caused by an unknown etiology.

"Dr. Davidson utilized the process of differential diagnosis to reach his conclusion. In performing his diagnosis, he considered several alternative causes of plaintiff's conditions including plaintiff's prior car injury, an immunological disorder, rheumatoid arthritis or Alzheimer's disease. Dr. Davidson stated that he relied on other experts' testimony and was aware of plaintiff's medical history.

"He also reviewed plaintiff's clinical test results, including the SPECT scan results and the Mayo Clinic differential diagnosis. His conclusion was, in fact, the same as that of Drs. Petersen and Fishman, two of plaintiff's own experts, even though he did not rule out all other possible causes as they did. None of them found hypoxia to be a likely cause of plaintiff's symptoms.

"We conclude that his testimony assisted the jury in understanding the evidence and the trial court did not abuse its discretion in admitting this testimony."


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