Plaintiff filed suit against Government for negligence and medical malpractice. Government filed a motion to exclude the testimony of gastroenterology expert witness. The court denied the motion in part and granted the motion in part.
Facts: This case (Stelman v. United States – United States District Court – Southern District of New York – September 21st, 2016) involves a claim of inadequate medical care at the federal bureau of prisons. The plaintiff (Stelman) alleges that her preventative bowel re-section surgery and post-operative wound infection (requiring surgery) was the result of the inadequate care and has brought claims for negligence and medical malpractice. In order to assist with her case, Stelman hired Dr. Mark A. Korsten as a gastroenterology expert witness.
Dr. Korsten opined that the medical staff caused Stelman’s injury by departing from the standard of care. He also stated that the failure to continue the Pentasa treatment and to prescribe anti-anxiety drugs led to a flare-up of her Stelman’s Crohn’s disease. Last, Korsten testified that Stelman’s infection and and surgery were caused by inadequate care of her wounds.
The Government filed a Daubert motion to exclude part of the expert witness testimony of Dr. Korsten. They claim that Dr. Korsten did not have any basis for opining on Stelman’s psychiatric care. In addition, they argue that Dr. Korsten based his opinions on personal experience, his opinions were conclusory and speculative, and the evidence does not support his conclusions.
Discussion: The government does not challenge the qualifications of Dr. Korsten, but the court reviewed them anyway and found that he is qualified to testify on issues of gastroenterology.
Regarding Dr. Korsten’s opinion that the physicians at MCC New York deviated from the standard of care by prescribing generic mesalamine instead of Pentasa, the Government argues that Dr. Korsten speculated that Stelman should have received Pentasa. The Government argues that Dr. Korsten has not adequately explained why the generic mesalamine did not meet the standard of care. The court did not agree with the Government, stating that Dr. Korsten did provide a reason why Stelman should have remained on Pentasa and not moved over to the generic drug. The Pentasa had proven to work and the generic had not. Any further arguments on this part of the testimony go to the weight of the evidence, not the admissibility.
Dr. Korsten also stated that the failure to treat Stelman’s anxiety was an additional factor causing her relapse of Crohn’s disease. The Government argues that this opinion should be excluded because it is speculative and conclusory. The court agreed with this part of the motion, stating that Dr. Korsten did not have any basis for concluding that the prescription drug Busbar was inappropriate drug for treating Stelman’s anxiety. Dr. Korsten is not an expert in psychiatry or psychology and did not refer to any treatises, books, or articles that would validate his conclusions.
Regarding Dr. Korsten’s opinion regarding the defendant’s failure to request consultation from specialists deviated from the standard of care, he did not elaborate how a consultation would have improved Stelman’s care. The Government argues that this opinion is speculative and conclusory. The court agreed with this part of the motion as well.
Last, Dr. Korsten’s opinion on the substandard wound care received by Stelman, the court agreed that it should be excluded. Dr. Korsten did not opine on the wound care Stelman received in September 2013, the date on which Stelman made clear that she is not perusing a claim. Thus, this part expert testimony will be excluded.
Conclusion: The expert witness testimony of Dr. Korsten is granted in part and denied in part.