The Estate of Margaret Klovenski sued Dr. Kapoor and alleged that he failed to diagnose her cancer. Plaintiffs filed the expert report of Dr. Julie Graves Moy. Dr. Kapoor objected and moved to dismiss. He alleged that Dr. Moy (1) was unqualified; (2) offered only conclusory opinions about causation; and (3) failed to state the standard of care or Dr. Kapoor's breach.
The COA first discussed qualifications and referred to the Broders case. The COA held, "Where a physician's failure to diagnose is alleged to have harmed a pt, an expert testifying as to causation must be qualified to opine about the effect of a timely diagnosis and treatment on the outcome." Dr. Moy did not state any experience or credentials to demonstrate that she was qualified to testify about what treatments would have been available with an earlier diagnosis or whether earlier administration of potential treatments would have resulted in a more favorable outcome. As a result, the COA held that the trial court abused its discretion in overruling Dr. Kapoor's objections.
The COA also considered Dr. Kapoor's objections to Dr. Moy's statements on the causal link between his failure to diagnose cancer and Ms. Klovenski's death. The COA noted that in opining on causation, the expert must offer more that a general opinion that timely diagnosis would have led to a better outcome. In this type of case, the expert must explain how the complained-of harm would not have happened if the injury had been diagnosed in a timely fashion. Because Dr. Moy failed to connect her conclusion to any specific facts regarding whether this cancer was treatable or how earlier treatment would have changed her prognosis, her report was insufficient.
The COA remanded the case to the trial court to consider whether to grant Plaintiff a 30-day extension to cure the report.
See the opinion at Kapoor v. Klovenski.
This opinion was released on September 23, 2010.
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