On January 27, 2016, a metal shot put struck a twelve-year-old student on the side of his head. He was at track and field tryouts behind his middle school in Memphis, Tennessee. A pediatric neurosurgeon repaired a depressed skull fracture the next morning.
Almost two years later, on November 10, 2017, Dr. Merrill Wise examined the boy for the lawsuit his mother had filed. Dr. Wise held board certification in child neurology. He concluded that the blow had caused permanent brain damage or scarring and recurring headaches. The school system moved to exclude him. The Circuit Court for Shelby County denied the motion, and the Court of Appeals of Tennessee affirmed on January 15, 2021.
A pediatric neurologist treats children with neurological conditions, including those that follow head trauma. Courts hear from the specialty when a lawsuit turns on what injured a child's brain, when the injury occurred, and whether it will last. Ohio law, for example, requires proof of causation in a malpractice case through medical expert testimony stated in terms of probability.
This article reviews three rulings, from Illinois, Tennessee, and Ohio. In each, a court admitted testimony from an expert in the field or relied on it.
Where Pediatric Neurology Appears in Litigation
Two of the three cases began in a delivery room. In the Illinois case, a guardian alleged that hospital staff failed to monitor and deliver a baby properly, leaving him with permanent brain damage. In the Ohio case, a man born in 1998 attributed his brain injury to trauma during his delivery. The third case, from Tennessee, involved a school sports injury and a negligence claim against a county school system.
The retaining parties varied. The defense retained the pediatric neurologist in Illinois and in Ohio. Plaintiff retained the expert in Tennessee.
In all three cases, the central question for the neurologist was causation. In the birth cases, that meant timing as well. The defense experts placed the origin of the injury before labor. One traced it to an infection the mother carried during pregnancy. The other tied it to a loss of brain tissue in the second or third trimester. On either view, the care given at delivery did not cause the injury.
In Tennessee, the questions extended to damages. The expert addressed whether the brain injury was permanent and what risks the student faced in the future. He also testified that the medical bills were necessary and reasonable.
The rulings do not describe any of the three experts as offering a standard-of-care opinion. In Ohio, that evidence came from an obstetrician.
The challenges took three forms. The first went to the edges of the specialty. The Illinois Plaintiff accepted the expert's standing in pediatric neurology but argued that he knew nothing about placental pathology. The Tennessee Defendants argued that Plaintiff's physician was not an expert in pediatric neurology at all.
The second form went to reliability. Opposing parties labeled the opinions speculative, unreliable, or built on false assumptions.
The third went to the expert's role. The Tennessee Defendants argued that a physician without firsthand knowledge of the treatment could not authenticate the medical bills.
The Rulings
First Midwest Bank v. Rush University Medical Center
First Midwest Bank v. Rush University Medical Center, United States District Court for the Northern District of Illinois, Eastern Division, No. 18 C 2382, decided July 27, 2020.
First Midwest Bank sued as guardian of the estate of a disabled minor. It named Rush University Medical Center and six individual physicians and nurses as Defendants. Plaintiff alleged that the providers failed to monitor and deliver the child properly. The alleged result was hypoxia, a deprivation of oxygen, and permanent brain damage.
Defendants denied negligence and advanced two alternative theories of causation. One was that an infection the mother had during pregnancy was transmitted to the child and led to his brain injury. The other was a genetic abnormality.
Defendants offered Mark S. Scher, M.D., a pediatric neurologist, on cause and timing. The Court set out his credentials. Dr. Scher was board-certified and had practiced in his specialty for 37 years. From 1997 to 2017, he was Chief of Pediatric Neurology at Rainbow Babies and Children's Hospital in Cleveland, Ohio. He also directed its Fetal and Neonatal Neurology Programs. He was a full professor of pediatrics and neurology at the Case Western Reserve University School of Medicine. He had authored more than 160 peer-reviewed articles and had sat on the editorial boards of two journals in his field.
In his Rule 26 report, Dr. Scher traced the child's condition to a methicillin-resistant staphylococcus aureus (MRSA) infection. The mother had the infection while the child was in utero. In his opinion, it was transmitted to the child and led to a fetal inflammatory response, meningitis, and a resulting brain injury.
Plaintiff moved to bar his testimony on the placenta, the fetal inflammatory response, brain infection, meningitis, and related subjects. The motion relied on Federal Rules of Evidence 702 and 403 and on the Daubert standard. Plaintiff did not attack Dr. Scher's qualifications in the general field of pediatric neurology. Plaintiff argued that he lacked knowledge of placental pathology and that many of his opinions related to the placenta. Plaintiff called those opinions "mumbo jumbo" and said they rested on false assumptions and incorrect science.
United States District Judge Ronald A. Guzmán denied the motion. "The Court is unpersuaded," he wrote. The Court explained that the Daubert inquiry looks at an expert's principles and methodology, not at the conclusions they generate. The bulk of Plaintiff's motion attacked Dr. Scher's conclusions. The Court also found that Plaintiff had mischaracterized his opinions by offering deposition excerpts out of context.
On qualifications, the Court found that Dr. Scher possessed sufficient qualifications for the opinions he provided. On the placenta, it found that Plaintiff had misread his work. The placenta was one factor among several. Dr. Scher had testified at his deposition that his conclusions rested on the combination of "maternal, placental, fetal, and neonatal facts."
On method, the Court listed what Dr. Scher had relied on. The list included his training and experience, peer-reviewed literature, deposition testimony, the child's medical and school records, and videos of the child. He had also provided supportive reasoning for his conclusions. The Court held that his opinions were based on "sufficiently reliable methodology." It saw no Rule 403 concern.
The ruling left the dispute for trial. The Court wrote that Plaintiff's criticisms "do not properly go to the admissibility of Dr. Scher's testimony, but to the weight that should be accorded to it," and that Plaintiff could explore them on cross-examination. In the same order, the Court denied Plaintiff's motions against three other defense experts. Defendants kept their infection theory, and Dr. Scher's account of it, for trial.
Spearman v. Shelby County Board of Education
Spearman v. Shelby County Board of Education, Court of Appeals of Tennessee at Jackson, No. W2019-02050-COA-R3-CV, filed January 15, 2021.
Crystal Spearman sued the Shelby County Board of Education and Shelby County Schools in August 2016. She sued for herself and for her son, a sixth-grade student who was twelve at the time of the injury. On January 27, 2016, a coach demonstrating the shot put threw the metal ball toward a group of students. It struck the boy's head.
A scan that day showed a depressed skull fracture measuring 4.5 by 4.5 centimeters. A pediatric neurosurgeon operated the next morning and reattached the bone with titanium plates and screws. Later scans, in April 2016 and February 2017, showed a small area of bruising or scarring on the brain.
Plaintiff brought a negligence claim under the Tennessee Governmental Tort Liability Act. She sought damages for her son's injuries and for the medical bills.
Dr. Merrill Wise was Plaintiff's medical expert. The opinion describes him as a medical doctor licensed in three states, including Tennessee, who specialized in pediatrics. He had worked first-hand as a child neurologist, treating patients whose conditions included those stemming from head trauma. He had held faculty positions at Baylor College of Medicine and at the University of Alabama at Birmingham School of Medicine, focusing on neurology. The opinion describes him as practicing in Memphis as a specialist in sleep medicine. He was not certified in neurosurgery, but he had maintained his board certification in child neurology.
Dr. Wise reviewed the medical records and performed an independent medical evaluation. He concluded that blunt force trauma from the shot put caused the depressed skull fracture, which resulted in permanent brain damage or scarring. He attributed the student's recurrent headaches to the head trauma and described them as mild. He found an elevated risk of posttraumatic seizures and psychiatric problems.
He also explained why the first scan showed no brain damage. Bruising of the brain may take weeks or months to develop.
On damages, Dr. Wise testified that the medical services were necessary. He testified that the $63,858.69 in bills was reasonable and consistent with customary charges in the Memphis area.
On January 8, 2019, Defendants moved to exclude Dr. Wise or to limit his testimony. They claimed that he was unqualified and that his opinions were speculative and unreliable. The Circuit Court denied the motion orally on the day of trial. Dr. Wise testified in person at the bench trial. On appeal, Defendants argued again that he was not an expert in pediatric neurology. They also argued that he lacked the firsthand knowledge needed to authenticate the medical bills.
The Court of Appeals rejected both arguments in an opinion by Judge Carma Dennis McGee. After reviewing the record, the Court agreed that Dr. Wise was qualified to testify as a medical expert under Tennessee Rules of Evidence 702 and 703. It cited his work as a child neurologist, his faculty positions, his board certification, his review of the records, and his evaluation of the student. The Court held that the Circuit Court did not abuse its discretion in allowing him to testify "with no limitations."
On the bills, the Court applied a four-part test. The physician must know the patient's condition, the treatment received, the customary treatment options in the community, and the customary charges. Dr. Wise met each part. He had never practiced as a neurosurgeon, but he had worked and consulted with neurosurgeons. The Court read Defendants as arguing that only a plaintiff or a treating physician could authenticate medical bills. It called that position "a clear misstatement of settled law."
The Circuit Court had found for Plaintiff and awarded $200,000 in compensatory damages. The award included the full $63,858.69 in past medical expenses. The Court of Appeals held that the testimony of Dr. Wise and the treating surgeon satisfied Plaintiff's burden on the necessity of the treatment.
On the brain injury, the Circuit Court did not disregard the testimony that the scans indicated permanent damage. It did not place significant weight on the issue, because the student had been released for sports without limitations. The Court of Appeals affirmed the $200,000 award.
Frank v. The Good Samaritan Hospital of Cincinnati
Frank v. The Good Samaritan Hospital of Cincinnati, Ohio, United States District Court for the Southern District of Ohio, Western Division, Case No. 1:18-cv-00618, filed September 3, 2021.
Jahmir Christopher Frank was born at Good Samaritan Hospital on July 30, 1998. According to his complaint, he suffered from periventricular leukomalacia, or PVL, a permanent and debilitating brain injury. He attributed it to trauma in utero during his delivery.
He sued the Hospital for medical malpractice. His complaint also alleged negligent destruction of medical records, a count the Court dismissed in December 2019. By 2021, only his individual malpractice claim remained. No medical records of the delivery were available. A birth video and birth photographs were.
The Hospital disclosed three experts on August 19, 2020. It filed their affidavits in support of its motion for summary judgment. One was Elias Chalhub, M.D., disclosed on causation. The Court identified him as "board-certified in neurology with a special certification in pediatric neurology."
Dr. Chalhub gave his opinion to a reasonable degree of medical certainty or probability. He stated that the brain injury was "completely unrelated to the medical and nursing care rendered" at the time of labor and delivery. He also addressed timing. In his opinion, the injury was associated with a loss of periventricular white matter. That loss likely occurred in the late second trimester or early third trimester of the pregnancy.
The ruling records no challenge to Dr. Chalhub's qualifications or method. The contest came from the other direction. The Hospital moved to strike Plaintiff's standard-of-care expert and his causation expert. District Judge Michael R. Barrett treated the motion as objections under Federal Rule of Civil Procedure 56(c)(2) and sustained them.
The Court found the standard-of-care witness not competent to testify under an Ohio evidence rule that requires active clinical practice. It excluded the opinions of Plaintiff's causation expert under Federal Rule of Evidence 702. The Court found one of those opinions speculative and the other dependent on the witness it had disqualified.
The Court then turned to summary judgment. Ohio law required Plaintiff to prove a breach of the standard of care. It also required him to prove causation through medical expert testimony in terms of probability. With Plaintiff's experts out, the Court reviewed the evidence that remained. It described Dr. Chalhub's testimony as "causation evidence properly before the Court" and quoted his affidavit.
The Court held that the opinions of Dr. Chalhub and two other defense experts stood unopposed. All three had stated that the brain injury was unrelated to the delivery. The Court found no genuine dispute on causation. An obstetrician's unopposed opinion resolved the standard-of-care element the same way.
The Court granted summary judgment to the Hospital and directed the Clerk to terminate the action.
Dr. Chalhub's testimony was one of three defense opinions the Court relied on for the causation element. The ruling did not rank them. His affidavit gave the Court a cause and a time frame for the injury that lay outside the delivery.
What the Rulings Have in Common
Board certification appeared in all three rulings. Dr. Scher was a board-certified pediatric neurologist with 37 years in practice. Dr. Wise had maintained his board certification in child neurology. Dr. Chalhub was board-certified in neurology with a special certification in pediatric neurology. Each court recited the credential when it described the expert.
The Illinois and Tennessee courts went further into the experts' careers. One recounted hospital leadership, a professorship, and more than 160 articles. The other recounted hands-on treatment of children with head trauma and two faculty positions.
Neither court required the neurologist to hold a neighboring specialty. In Illinois, the challenge centered on placental pathology. The Court answered that the placenta was one factor in opinions that also rested on maternal, fetal, and neonatal facts. In Tennessee, Dr. Wise was not a neurosurgeon, and his practice had moved to sleep medicine. The Court of Appeals found him qualified to address the injury and the cost of treating it.
The methods the courts accepted were conventional. Dr. Scher reviewed medical and school records, deposition testimony, videos, and peer-reviewed literature, and he applied his training and experience. Dr. Wise reviewed the records and examined the student himself. Dr. Chalhub stated his opinion to a reasonable degree of medical certainty or probability. Ohio law asked for causation testimony in terms of probability.
The two courts that decided a challenge kept method apart from conclusion. The Illinois Court declined to weigh whether Dr. Scher was right about the infection. It sent that dispute to cross-examination. The Tennessee opinion made a similar point about admitted expert testimony. Quoting earlier state authority, it said such testimony is "tested with the crucible of vigorous cross-examination and countervailing proof."
On fit, each expert addressed an element that the retaining party had to prove or rebut. The Illinois Court called the cause of the child's condition the primary issue in the case, and Dr. Scher's opinions went to cause and timing. In Tennessee, Plaintiff had to prove that the medical bills were necessary and reasonable, and Dr. Wise testified to both. In Ohio, Dr. Chalhub's opinion went to causation, the element on which the Court found no genuine dispute.
Practical Points for Attorneys
The Illinois motion failed largely because of what it attacked. A motion aimed at an expert's conclusions drew the answer that conclusions are tested on cross-examination. The Court also faulted the use of deposition excerpts out of context. In a footnote, it criticized the tone of Plaintiff's briefs and said it expected counsel to refrain from "histrionic and ad hominem rhetoric."
For the party offering the expert, the Illinois record showed the full basis of the opinion. Dr. Scher's deposition testimony tied his conclusions to four categories of facts. That testimony answered the claim that he relied mainly on the placenta. His curriculum vitae was in the record, and the Court drew on it for his credentials.
The Tennessee ruling shows that an expert's current practice area did not decide his qualification. The record contained his earlier clinical work, his maintained certification, his review of the records, and his in-person evaluation. Attorneys who offer a non-treating physician on medical bills can note the four subjects the Court looked for. Dr. Wise testified to each.
Plaintiff in Tennessee also used a state statute on medical bills. Under it, itemized bills served at least 90 days before trial carry a rebuttable presumption of reasonableness. The record showed no attempt by Defendants to rebut the presumption.
In Ohio, the Hospital filed its experts' affidavits with its summary judgment motion. Dr. Chalhub's affidavit used the probability standard that Ohio law applied. It addressed both the cause of the injury and its timing. When no admissible opposing opinion remained, the Court treated the testimony as unopposed and entered judgment.
These points are observations from three rulings. They are not legal advice.
After the Rulings
The three rulings were issued between July 2020 and September 2021. In Illinois, Dr. Scher was cleared to testify that an infection during pregnancy caused a child's brain injury. In Tennessee, a $200,000 judgment stood, with every dollar of the medical bills Dr. Wise had reviewed. In Ohio, Dr. Chalhub's affidavit was part of the evidence on which the Court ended the case.
Each expert was asked what injured a child's brain, and two were asked when. Each court allowed a pediatric neurologist to answer.