Beware. Even when speculative medical opinions are excluded, plaintiffs in a medical malpractice case may seek alternative pathways to present the same damages theories to a jury in a “back door” maneuver.
It happens more often than one might think. When courts exclude speculative medical opinions establishing causation or damages, plaintiffs attempt to reintroduce the same conclusions through life care planners relying on “regulations,” “agency requirements,” or “industry practice,” rather than medical necessity.
In a recent case, we successfully excluded an expert neurologist’s opinion that a child was reasonably likely to have future seizures requiring rescue medication and thus, required skilled nursing monitoring. Despite this exclusion, the life care planner was permitted to testify that skilled nursing was required, based on her interpretation of Maryland regulations and calls with nursing agencies.
This tactic, and plaintiff-friendly rulings by the trial judge, allowed the plaintiff to effectively bypass a Daubert ruling and present a multimillion-dollar damages claim unsupported by admissible medical necessity evidence.
Defense strategy should anticipate this approach. When courts exclude speculative medical testimony, we cannot allow life care planners to reintroduce those same conclusions under the guise of “regulations” or informal consultations with nursing agencies. These sources address licensing and reimbursement, not medical necessity. Courts should be asked to rule explicitly that regulatory frameworks cannot substitute for medical testimony.
At Waranch and Brown, we work closely with our healthcare clients to anticipate these back door tactics, protect evidentiary boundaries, and ensure that damages claims remain grounded in admissible medical testimony rather than regulatory reinterpretation.