Klein v. Norwalk Hospital
The existence of a patent does not permit an assumption that patented equipment is reliable to diagnose an injury or that a theory or technique is generally accepted in the scientific community. Eric Klein sued the defendant hospital and alleged its nurse violated the standard of care when she changed an intravenous line. A jury returned a defendants' verdict. Klein appealed. On remand from the Connecticut Supreme Court, the hospital requested a Porter hearing concerning the admissibility of the 2012 MR Neurography of the plaintiff, performed by the plaintiff's new expert, Aaron Filler. Dr. Ian Karol testified that in Connecticut a standard test that uses MR Neurography to assess nerve injury does not exist. The plaintiff maintained the test is admissible to prove he experienced traumatic nerve damage, as opposed to another cause of injury. Plaintiff's expert Dr. Lipton claimed that a Bronx hospital uses a similar test to diagnose nerve disorders. Courts may consider whether a theory or technique: 1.) has been tested; 2.) has been subjected to peer review and publication; 3.) has a potential or known rate of error; and 4.) is generally accepted in the scientific community. In the absence of testimony from Dr. Filler, there was only conjecture about the specific procedure. The record was unclear about the parameters and interpretation of the test. Drs. Karol and Lipton were unable to testify about specific techniques the Neurography Institute used. The plaintiff also failed to establish reliability as a result of peer review articles. Five peer review articles only provided general discussions about a new technique and did not rise to the level of proof required. The plaintiff failed to establish any peer review studies supported the admission of the MR Neurography. The existence of a patent did not permit an assumption that patented equipment was reliable to diagnose nerve injury. "The plaintiff cannot have this well protected and secret testing process available to only the few licensed centers of Dr. Filler," wrote the court, "and then ask the court to find that it is generally accepted." The court concluded the MR Neurography was not admissible.