The Role Of "Clinical Instinct” In Current Medical Practice

In a civil rights § 1983 suit alleging deprivation of due process by defendant police officer, who claimed qualified immunity in acting upon a doctor's emergency room advice that infant's critical infection necessitated immediate treatment, admitting expert testimony of a witness opining on a doctor's dependence on "clinical instinct" was a "well-recognized and accepted" feature of medical practice; this testimony was properly admitted under FRE 702 because it was relevant to whether defendant officer acted reasonably based on the doctor's medical risk assessment of the infant, and the expert evidence was proper rebuttal evidence to plaintiff's expert regarding the medical standard of care, in Mueller v. Auker, __ F.3d __ (9th Cir. Sept. 10, 2012) (No. 11-35351)

The Ninth Circuit recently examined a number of questions arising in a suit between parents of a child and a police detective regarding the medical treatment of a child over a decade ago. The circuit initially reversed and remanded the case back to the district court, finding that some defendants might be entitled to qualified immunity and that summary judgment was precluded as to whether a defendant detective had acted under an imminent danger to the infant child's life. One minor point in this connection was expert opinion testimony that was presented in the case regarding action based on "clinical instinct" as a "well-recognized and accepted" feature of medical emergency practice.

In the case, the plaintiffs were parents of a child who in 2002 had contracted a fever. In consultation with the 2 year old child's naturopathic physician, the plaintiff decided to have the child evaluated at a local hospital emergency room. After initial testing ruled out ear or urinary tract infections, the emergency room doctors advised a spinal tap for meningitis -- because at least 5% of children displaying the child's symptoms die from that condition if no steps were taken. In the process of providing the diagnostic test for the child, one police detective found it necessary to declare the child a temporary ward of the state, so that the State Department of Health could give permission for the allegedly necessary medical examination recommended by the emergency room doctors. The parent who accompanied her child to the emergency room opposed the testing for meningitis and in later litigation contended that the child's constitutional rights as well as the parents' had been deprived by the failure to provide her adequate notice and hearing before depriving them of parental control over their infant daughter.

In response to the § 1983 claim, the defendant detective claimed qualified immunity in acting upon a doctor's emergency room advice that infant's critical infection necessitated immediate treatment. After one appeal to the circuit and back, the case concluded when summary judgment was entered in the defendant's favor, based on the detective's claim of qualified immunity. The parents appealed on a variety of grounds, one which included the admission of expert opinion evidence on the defendant's behalf under FRE 702. The circuit ultimately rejected the parent's claim that the expert's testimony had been improperly admitted, noting that the expert's testimony touching on a doctor's dependence on "clinical instinct" as a "well-recognized and accepted" feature of medical practice, was relevant to whether the detective acted reasonably based on the doctor's medical risk assessment of the infant. In addition, this evidence was admissible as proper rebuttal evidence to plaintiff's expert regarding the applicable medical standard of care.

In their appeal, the plaintiffs disputed the admission of expert testimony, alleging that this testimony failed the FRE 702 requirement of being the product of reliable principles and methods.” Specifically, they argued that the expert's "opinion was based solely on 'clinical instinct,' which they argue was not a reliable basis for expert testimony under Rule 702." Mueller, __ F.3d at __. The circuit disagreed. Noting that "there can be no dispute" that the expert witness was "well-credentialed in this field of medicine, and that he has had a distinguished career and extensive experience.... [As] a board-certified emergency room physician with over forty years of practice. In addition to being a prolific author, he was then a professor of emergency medicine at Harvard Medical School and the University of Arizona School of Medicine.'" Mueller, __ F.3d at __.

The expert opined that action was necessary regarding the child, because she "looked ill, acted ill, and had a history of not behaving normally. She was lethargic. She was not feeding properly, and she did not have a normal initial physical examination. It was that constellation of presentation, history, and findings ... [that] convinced me that she was a patient who needed a mandatory fever workup and that the risk of a serious bacterial infection ... was very accurate." Mueller, __ F.3d at __. In their appeal, the plaintiffs suggested that the expert's comments on the role of "clinical instinct" was just the sort of non-systematic, non-scientific approach that should undermine an expert's opinion. The circuit rejected this characterization of the expert's opinion evidence, suggesting instead that a doctor's "clinical instinct is a well-recognized and accepted aspect of current medical practice. The precept encompasses what experience adds to scientific knowledge and training. Clinical instinct as a diagnostic and treatment tool is not new." Mueller, __ F.3d at __.

The circuit noted that the trial judge had occasion to revisit the admissibility of the expert's testimony in considering the plaintiff's post-trial motion for a new trial. The circuit noted that this only affirmed the trial judge's conclusions -- it had "correctly summarized the situation," and that the "diagnosis that [infant] Taige had a serious bacterial infection was 'a judgment call based on clinical instinct and made under time pressure.'" It did not need to be perfect judgment. Mueller, __ F.3d at __.

In concluding its consideration of the question, the circuit noted that the significance of "clinical instinct" in the practice of medicine had been noted by the circuit previously, and that the trial judge had properly relied on an earlier case touching on medical judgment to reach its result. Mueller, __ F.3d at __. (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (“Despite the importance of evidence based medicine, much of medical decision-making relies on judgment—a process that is difficult to quantify or even to assess qualitatively. Especially when a relevant experience base is unavailable, physicians must use their knowledge and experience as a basis for weighing known factors along with the inevitable uncertainties” to “mak[e] a sound judgment.”) (quoting Harrison's Principles of Internal Medicine 3 (Dennis L. Kasperet et al. eds., 16th ed.2005))).

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Federal Rules of Evidence
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