Link to Mo. Sup. Ct. Opinion
In Kivland, the Supreme Court of Missouri reiterated that, in a wrongful death lawsuit, the guiding standard for expert witness testimony is Mo. Rev. Stat. section 490.065 in which the plaintiff must show that an expert witness is both qualified and capable of clarifying the issues for the trier of fact. In a wrongful death lawsuit, the plaintiff must demonstrate that the defendant was both the direct and proximate cause of the decedent’s death. In this case, the issue was whether the plaintiff had satisfactorily demonstrated the proximate cause element. The court ruled that the element was satisfied when the plaintiff’s expert witness testified in a deposition that the deceased was driven to suicide after an alleged botched surgery resulted in severe, debilitating pain. The court added that the decedent’s mental state was immaterial to the admissibility of the expert witness. The summary judgment was partially reversed and remanded.
I. Facts and Holding
In January 2005, defendant Dr. Robert Gaines attempted to correct an abnormality in Gerald Kivland’s spine.[2] However, the operation allegedly paralyzed Kivland from the waist down, subjecting him to “continuous and extreme pain.”[3] Kivland sued Gaines for medical negligence, and Kivland’s wife sued for loss of consortium.[4] Subsequently, Kivland was prescribed several pain medications, and when those failed, he underwent an operation for a “morphine pump.”[5] He was also prescribed anti-depressant and anti-anxiety medications.[6]
Eight months after Kivland filed the lawsuit, he wrote “farewell letters” to his wife and daughter, bought a gun, and killed himself.[7] His widow subsequently amended the medical negligence claim to include lost chance of survival and wrongful death.[8] Dr. Gaines, however, filed for summary judgment, arguing that the suicide was an independent intervening event, and, as such, he could not be responsible for Kivland’s death.[9]
In a pretrial hearing, the Kivland estate introduced a psychiatrist as an expert witness, who testified that the suicide directly resulted from Kivland’s post-operation pain.[10] Dr. Gaines, however, successfully petitioned the court to block the psychiatrist from testifying as to why Kivland committed suicide, and the court granted Dr. Gaines partial summary judgment.[11] The plaintiff appealed.[12] The Supreme Court of Missouri held that the testimony from the plaintiff’s expert witness satisfactorily demonstrated the proximate cause element in a wrongful death lawsuit.[13]
II. Legal Background
A. Lost Chance of Survival
The Supreme Court of Missouri ruled that the circuit court correctly dismissed the lost chance of survival claim, based on either failure to state a claim or as a motion for summary judgment.[14] Lost chance of survival differs from wrongful death in that it is based on the notion that an individual was injured because his illness had not been properly diagnosed and treated.[15] The key to a lost chance of survival claim is that it is “used when ‘it is impossible for a medical expert to state with ‘reasonable medical certainty’ the effect of the failure to diagnose [or treat] on a specific patient, other than the fact that the failure to diagnose eliminated whatever chance the patient would have had.’”[16] Because the plaintiff did not include such facts, “it [wa]s impossible to establish that Kivland died as a result of the defendants’ negligence,” and the plaintiff failed to make a prima facie case.[17]
B. Wrongful Death
Before examining the issue of partial summary judgment, the Supreme Court of Missouri first examined when a negligent defendant could be liable for a suicide.[18] In a wrongful death claim, the plaintiff must show that the decedent’s suicide was the “direct and proximate result” of the defendant’s negligence.[19] The court noted that previous cases involving suicides and wrongful death lawsuits grappled with the issue of whether a suicide is an “independent and intervening act which breaks the causal connection between the allegedly negligent act and the death.”[20] Other cases have held that a defendant could be held liable for a suicide if the decedent had suffered from insanity or if the decedent acted under “an irresistible” insane impulse when committing suicide.[21]
The court noted that case law regarding suicide and “irresistible impulse” is contradictory and focused instead on causation as the key to a wrongful death claim.[22] To make a claim that would survive summary judgment, the plaintiff must show that the suicide was the “natural and probable consequence” of the defendant’s actions.[23] If the testimony of the plaintiff’s expert witness is admissible, then it would satisfy the proximate cause requirement, the court reasoned.[24] Then, the jury can decide as a “question of fact” whether the defendant’s negligence caused the suicide.[25]
C. Expert Witness Admissibility
The court states that certain criteria must be fulfilled before a trial court may admit expert testimony: “(1) the expert is qualified; (2) the expert’s testimony will assist the trier of fact; (3) the expert’s testimony is based upon facts or data that are reasonably relied on by experts in the field; and (4) the facts or data on which the expert relies are otherwise reasonably reliable.”[26] The court emphasized that it is not the trial court’s role to judge the relative strength or weakness of an expert witness—that task belongs to the jury.[27] So long as the expert witness meets the statutory requirements, the trial court must admit the expert.[28]
D. Summary Judgment Ruling
The Supreme Court of Missouri found that the circuit court erred when it failed to admit the plaintiff’s expert witness.[29] The court applied the statutory requirements of an expert witness to the case at hand and found that the plaintiff’s expert satisfied the minimum criteria: he is a board-certified psychiatrist who has treated patients with similar symptoms, and he can clarify issues for the trier of fact in this medical negligence case.[30]
The circuit court granted summary judgment for the defendant because of the statutory requirement that the expert witness must “rely on facts and data that were reasonably relied on by experts in the field and the facts and data needed to be otherwise reasonably reliable.”[31] Because Kivland did not have a medical diagnosis, nor was he declared insane, the circuit court concluded that the expert witness’ testimony would simply be “personal opinions, not scientific conclusions.”[32]
The court reiterated that plaintiffs do not need to show that Kivland had a medical diagnosis or suffered from insanity: the law simply requires that the plaintiffs show causation.[33] The court noted that the psychiatrist gave his opinion to a reasonable degree of certainty and that it is up to a jury, not the circuit court judge, to decide whether the psychiatrist’s opinion has any credence.[34] The court held that the cause of the Kivland’s suicide is a “genuine issue of material fact” for the jury to decide.[35] The summary judgment was reversed, and the case was remanded.[36]
III. Comment
In Kivland, the Supreme Court of Missouri cut through much dicta related to suicides and clarified that the linchpin for a plaintiff to successfully bring a wrongful death lawsuit is causation. So long as the expert witness is qualified and able to clarify issues for the trier of fact, the trial court has no discretion to disallow expert testimony in a pretrial hearing.[37] This ruling could result in more wrongful death claims getting settled because the plaintiff does not need to worry about expert credibility or even the soundness of expert testimony until trial. If the plaintiff is simply able to survive summary judgment by producing an adequate expert witness, more defendants may be persuaded that there is some merit to the case and that settlement is an attractive option. By focusing on causation as the key in allowing a wrongful death lawsuit, the court reiterated its previous ruling in State Board of Registration for the Healing Arts v. McDonagh[38] and held that section 490.065 controls the admission of expert opinion testimony in civil cases.[39]
-Linda Man
[1] No. SC90708 (Mo. January 25, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=43940. The West reporter citation is Kivland v. Columbia Orthopedic Group, 331 S.W.3d 299 (Mo. 2011) (en banc).
[2] Id. at 302.
[3] Id.
[4] Id.
[5] Id. at 303.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 303-04
[10] Id. at 304.
[11] Id.
[12] Id.
[13] Id. at 311.
[14] Id. at 306.
[15] Id. at 305.
[16] Id. (quoting Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 682 (Mo. 1992) (en banc)).
[17] Id. at 305.
[18] Id. at 306.
[19] Id. at 307 (citing Wallace v. Bounds, 369 S.W.2d. 138 at 143-44 (Mo. 1963)).
[20] Id. at 307 (quoting Eidson v. Reprod. Health Servs., 863 S.W.2d. 621, 627 (Mo. App. 1993)).
[21] Id. at 307
[22] Id.
[23] Id. at 309.
[24] Id. at 310.
[25] Id.
[26] Id. at 311 (citing Mo. Rev. Stat. § 490.065).
[27] Id.
[28] Id.
[29] Id. at 312.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 313.
[35] Id. at 314.
[36] Id.
[37] Id. at 311.
[38] 123 S.W.3d 146 (Mo. 2003) (en banc).
[39] 331 S.W.3d 299
