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Using Daubert to Defeat Causation in the Delayed Diagnosis Claim

By Victoria M. Davis and Brian R. Stimson

Part One of a Two-Part Article

The old maxim, “the earlier the treatment, the better the outcome” has been a longtime staple in plaintiffs' collection of so-called “expert medical opinions.” Let's face it — the notion that earlier treatment is preferable, while imprecise, seems like a logical conclusion for most of us. However, the Eleventh Circuit's recent decision in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), establishes that such general medical principles, which are typically based on no more than the expert physician's common-sense and anecdotal experience, are far too speculative to overcome an evidentiary challenge pursuant to Daubert v. Merrell Dow Pharmeceuticals, Inc., 509 U.S. 579 (1993) and therefore fail to establish causation in a medical negligence case. This is particularly so in those cases where the defendant medical provider maintains that the plaintiff's unavoidable and unpredictable underlying condition — and not an alleged delay in treatment — caused the plaintiff's injury, such that the plaintiff would have experienced the same level of injury despite any alleged delay.

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