Expert testimony admissible in wrongful death suit, court rules

A lower court was wrong to prevent testimony from an expert witness in a wrongful death lawsuit against an orthopedic surgeon and his practice, the Missouri Supreme Court has ruled.

In a unanimous opinion issued Jan. 25, the court said a doctor called to testify for patient Gerald Kivland's family should have been permitted to do so. The ruling allows the case to move forward a second time in circuit court (link).

In 2005, Kivland filed a medical liability lawsuit against surgeon Robert Gaines, MD, and Columbia Orthopaedic Group LLP. He alleged that spinal surgery performed by Dr. Gaines resulted in chronic pain and paralysis from the waist down, according to court records.

In 2006, Kivland committed suicide. His family continued the lawsuit but amended it to wrongful death and "lost chance of survival."

Dr. Gaines did not dispute Kivland's paralysis after surgery but said he was not responsible for Kivland's death.

During discovery, psychiatrist Michael Jarvis, MD, testified in a deposition that Kivland's death resulted from the pain caused by surgery and that his suicide was not a voluntary act.

Attorneys for Dr. Gaines moved to dismiss the case. They argued that Kivland's suicide was an independent act for which the surgeon was not responsible. The expert witness should be disqualified, they said. Boone County Circuit Judge Gary M. Oxenhandler agreed and dismissed the case.

However, the state Supreme Court said testimony from the expert witness met requirements for a wrongful death claim.

"Whether [the witness's] opinion is to be believed or accepted is for the jury, not the court" to decide, the high court said. "It does not matter if the circuit court disagrees with the expert's opinion and believes suicide was the decedent's voluntary decision. This is not a sufficient reason to exclude the testimony."

At this article's deadline, Columbia Orthopaedic Group LLP and attorneys for Dr. Gaines had not returned calls seeking comment. Thomas Neill, attorney for the Kivlands, had no comment on the ruling.