Disclosure, Delay, and the Collateral Source Rule: The Expert Who Was Ready but Never Called
A late-disclosed ACA expert in a pediatric malpractice case was barred — not for missing the deadline, but because the evidence itself was ruled inadmissible.
In a pediatric medical malpractice case, a defense team disclosed an Affordable Care Act expert more than a year past the expert-disclosure deadline. The expert’s report had been completed months before the disclosure was made. The opposing family moved to exclude her, arguing the defense had offered no explanation for the delay. And in the end, the Court barred her testimony — not on timeliness grounds, but because it ruled the entire category of evidence she was brought in to support was inadmissible. For insurance professionals and expert witnesses, this case illustrates how disclosure timelines, the collateral source rule, and evidentiary admissibility can intersect — and how each can independently determine whether an expert ever takes the stand.
A Heart Condition, a Long Wait, and a Lawsuit
The case began with a newborn. A girl born in November 2010 at a regional medical center in Idaho was found to have a heart murmur shortly after birth. An echocardiogram performed two days later confirmed she had several ventricular septal defects — commonly known as VSDs — which are holes in the wall separating the two lower chambers of the heart.
The child was referred to a university-affiliated pediatric cardiology clinic and a children’s hospital in a neighboring state. A cardiologist evaluated her and ordered a complete echocardiogram, which revealed a perimembranous VSD along with additional muscular VSDs showing bidirectional shunting. That meant blood was flowing abnormally in both directions through the holes. The cardiologist recommended a follow-up in six to eight weeks.
At a visit the following month, the same cardiologist noted no significant heart enlargement and found the child growing well. She recommended another echocardiogram around the time the child reached six months of age.
In May 2011, a second cardiologist took over the child’s care at the university clinic. This physician — who would become the central figure in the lawsuit — ordered an electrocardiogram but did not perform an echocardiogram. According to the complaint, she noted the child was uncooperative during attempts to conduct one and wrote that she did not believe an echocardiogram was necessary. She did acknowledge, however, that she could not rule out the possibility the VSD would need surgical closure, noting it would depend on whether there was evidence of pulmonary hypertension or failure to thrive.
The complaint alleged that the physician did not note symptoms suggesting the child was failing to thrive at that visit. She recommended a return in six months.
According to the complaint, the visits that followed over the next several years shared certain features. At a December 2011 follow-up, the physician ordered an electrocardiogram but not an echocardiogram. The electrocardiogram showed upright T-waves at V1, which she attributed to probable right ventricular hypertrophy — a thickening of the heart’s right ventricle wall that can be associated with increased pressure in the lungs. She noted she believed things were going well and that the exam suggested a tiny VSD with no significant pulmonary hypertension. She recommended a return in six months and noted that if the electrocardiogram remained borderline, a sedated echocardiogram would be needed.
The complaint again alleged the physician did not note symptoms suggesting failure to thrive.
More than a year passed before the next visit. In February 2013, the physician once again ordered an electrocardiogram — which again showed upright T-waves at V1 — but did not perform an echocardiogram. She concluded the VSD was small and found no evidence of pulmonary hypertension, failure to thrive, or low cardiac output. She recommended a return in one year and planned to repeat an echocardiogram after the child turned three, to avoid sedation.
In January 2014, nearly three years after this physician had taken over the child’s care, the first echocardiogram under her watch was performed. It confirmed the perimembranous VSD and three or four additional muscular VSDs with evidence of bidirectional shunting, predominantly left to right. The physician noted that the main pulmonary artery was dilated. She also noted the child was doing well from a cardiac standpoint, opined the VSDs would close over time, and advised the family to return in three years.
The complaint alleged the physician did not evaluate the child for immediate surgical intervention at that visit.
A Hospital Stay and Mounting Concerns
In June 2014, the child was admitted to the children’s hospital for meningitis and a fever. During that admission, another echocardiogram was performed. It revealed multiple VSDs with left-to-right shunting, along with a mildly dilated main pulmonary artery, a mildly dilated right pulmonary artery, and a dilated left atrium. A cardiology consult assessed the child’s symptoms as possibly consistent with Kawasaki’s disease, though she did not meet all classic criteria. She responded to treatment and was discharged several days later.
At a July 2014 follow-up, the treating physician noted the child had been moody, was not eating, and had been averaging several bloody noses per day. She diagnosed congenital heart disease with a small perimembranous VSD, dilated left atrium, and dilated main and right pulmonary arteries. She opined the VSD might still close on its own and recommended a return in three years.
The complaint again alleged the physician did not evaluate the child for immediate surgical intervention.
Later that month, an echocardiogram was performed, but it did not assess the VSDs — though the child’s history of multiple VSDs was noted in the report. When the physician reviewed this echocardiogram a month later, she noted that for some reason the VSDs had not been assessed. She set a follow-up for the following year.
In August 2015, the child was seen by a different cardiologist at the university clinic. This new physician ordered an echocardiogram that revealed multiple VSDs with bidirectional, predominantly low-velocity, left-to-right shunting. The findings concerned this cardiologist, as they suggested elevated right ventricular pressure. She referred the child for cardiac catheterization.
According to the complaint, by August 2015, the child’s pulmonary hypertension — which the family alleged had been evident throughout the prior physician’s care — had become severe and irreversible. The new cardiologist informed the family that the pulmonary hypertension was permanent and that surgery to repair the VSDs should have been performed years earlier.
In December 2015, surgery was performed to repair and close the VSDs. But the damage, the complaint alleged, was done. The child was left with irreversible pulmonary hypertension, a condition she and her family would need to manage for the rest of her life. The complaint stated she had significant limitations on daily activities and remained at risk for further medical complications.
The Lawsuit
The family filed suit in December 2018 in federal Court, with jurisdiction based on diversity of citizenship. They brought a single cause of action for medical malpractice, alleging the Defendants owed a duty to provide the same care a reasonable and prudent healthcare provider would under similar circumstances, and that this duty was breached.
The specific allegations of negligence included failure to timely diagnose and treat the child’s conditions, failure to timely perform appropriate testing including echocardiograms, failure to properly recognize and interpret test results, failure to timely determine that surgical repair was needed, failure to timely consult with or refer to other specialists, and failure to establish and follow appropriate protocols.
The family sought damages including past and future medical expenses, disability, lost earning capacity, loss of enjoyment, physical and emotional pain and suffering, and loss of filial consortium for the parents. They demanded a jury trial.
An Expert Appears — Forty-Two Months In
The Court entered a scheduling order giving the Defendants fifteen months to disclose their expert witnesses. That deadline was extended multiple times — first to eighteen months, then to twenty-two, and finally to twenty-seven months — landing on a final deadline of May 30, 2021.
On June 1, 2021, the university Defendants filed what they described as a partial expert disclosure, identifying two physicians who would testify on liability. About a month later, pursuant to an agreement with opposing counsel, they disclosed the remainder of their experts: a life-care planner and an accountant, both focused on damages. Neither of these experts addressed the Affordable Care Act or how it might apply to the child’s future medical needs.
At that point — twenty-eight months after the lawsuit was filed — the Defendants had disclosed all of their experts, according to the family’s later account of the timeline.
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