thumbnailIn an opinion released last week by the Nebraska Supreme Court, it indicated that a forensic pathologist who performed a poor autopsy could be liable for malicious prosecution when that autopsy formed part of the basis of criminal charges against a daycare provider.

In McKinney v. Okoye, 287 Neb. 261 (2014) the Nebraska Supreme Court considered a malicious prosecution claim brought against a forensic pathologist whose testimony contributed to charges being pressed against a daycare provider. 

The case arose out of a tragic incident wherein a 6-week-old infant boy died while in the care of a 21 year veteran of the daycare industry.  An autopsy was performed by a doctor who was under contract with Lancaster County.  The doctor concluded that the cause of death was due to homicide through blunt force trauma to the head and asphyxiation.  Soon after, the day care provider was charged with felony child abuse resulting in death.  One year later, the charges were dropped. 

HeadThe day care provider sued the pathologist for malicious prosecution, claiming that the charges were dropped because both of the independent forensic examiners she retained determined that the cause of death was SIDS and there was no evidence revealing a traumatic injury to the infant.   The day care provider sued the doctor, but the trial court dismissed her case on summary judgment.

On appeal, the Nebraska Supreme Court noted that the evidence was sufficient to raise an issue as to whether the doctor knowingly provided false or misleading information in his autopsy report. 


The court found it persuasive that the day care provider had provided evidence by way of two experts that the doctor had “acted far afield of mere negligence.”  The court explained that “when experts find statements by a professional in their field not only false or misleading, but grossly negligent, shocking, and generally inexplicable, then it may be reasonable to infer that the . . . statements were knowingly and intentionally made.” 

The court also noted that these two experts “both opined that there was no reasonable basis for a pathologist . . . to believe that the cause of death was homicide.” 

Based on this, the court concluded that the doctor could be liable to the daycare provider for malicious prosecution.

There are a couple of take-aways here.  Although not strictly a medical malpractice case, the court’s decision highlights the importance of finding well-skilled experts.  The day care provider’s experts were key to the court’s decision.  Additionally, critical to the court’s analysis was the actual medical records from the pathologist.  This only underscores how charting can make (or break) a case.