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Court requires further examination of stroke victim's three medical specialists

Raymond O'Neal sued St. John Hospital and Ralph Dilisio, M.D., claiming that the defendants breached the standard of care and missed an opportunity to prevent his stroke.  O'Neal claimed that if he had received a transfusion when he presented with Acute Stroke Syndrome, as required by the standard of care, his stroke would never have occurred.  He was mis-diagnosed with pneumonia, so that the allegedly stroke-saving treatment was never administered.  O'Neal presented the testimony of three medical specialists in support of his claim.  Nevertheless, a three judge panel of the Court of Appeals  held in 2008 that expert testimony that O'Neal "probably would not have suffered the stroke if he had received proper care" was inadequate to prove causation, and it granted summary disposition of his claim.  O'Neal appealed to the Supreme Court, which reversed the appellate court's opinion and sent the case back to the Court of Appeals.  This week that court reviewed the causation testimony in the lower court and sent the case back to the trial court for a hearing on the adequacy of the Plaintiff's expert testimony.

In reviewing the testimony already taken by the trial court (which the trial judge deemed admissible and adequate to go to trial) the Court of Appeals noted that O'Neal's attorneys presented evidence from a specialist in hematology and oncology, from a board-certified internal medicine, pulmonary disease and criticial care physician, and from a third specialist from a field the court didn't identify. 

Together the doctors cited as a basis for their opinions numerous years of experience in treating similar patients, a pediatric study demonstrating a "markedly reduced risk of stroke" when the patient is provided "aggressive transfusion therapy," and authoritative articles or chapters in the New England Journal of Medicine and Cecil's Textbook of Internal Medicine. They claimed there was "very good data" to support their conclusions that a stroke would have been avoided, and one also offered the opinion that with no adult studies to rely upon, and with good biochemical analysis, the pediatric study on-point was a reasonable foundation for their opinions.  One physician went so far as to extrapolate from the data in the literature the probability that proper treatment would have reduced O'Neal's risk of stroke from as high as 20% to as low as 5%: "by at least half and probably greater than half." 

The court did not cite any expert testimony provided by the Defendants, if there was any that was pertinent.  Despite the breadth and depth of the testimony provided by the Plaintiff--and its apparent grounding in reliable medical literature-- the Court ruled that the trial court had not met its duty of providing a "threshold inquiry" into the reliability of the Plaintiff's opinions and sent the case back to the lower court.  While the Plaintiff will undoubtedly be able to further "flesh-out" the foundation for these specialists' opinions, he will be forced to spend another 5 to 10 thousand dollars on an additional preliminary hearing (in experts' time and travel costs) and the trial will be delayed for many more months.  A disabling and apparently preventable injury will be a decade old before O'Neal gets a trial on the merits; and he will have spent between $50,000.00 and $100,000.00 out-of-pocket, just to have his "day in court."  And this is true even though three different medical specialists believe that a breach of the standard of care in his treatment caused the disabling event.  When the physician's insurance representatives are able to use the system--and friendly judges--to achieve this kind of delay and to impose obstacles of this severity, "justice delayed is [indeed] justice denied."

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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