On July 6, 2020, the Keisters filed their Alabama medical malpractice lawsuit against Neurology Consultants and Dr. Kar, alleging that they had “negligently caused, or negligently allowed Plaintiff, Rebecca Ann Keister, to go without proper and necessary evaluation, analysis, testing, treatment and follow up for multiple sclerosis after the report of their ordered MRI on September 24, 2018.” The Keisters asserted that the delay in the diagnosis and treatment for Mrs. Keister’s MS caused her condition to be worse than it would have been if they had been informed of the September 2018 MRI results.
The Keisters filed their expert disclosure, in which they named Dr. Daniel Kantor, a board-certified neurologist who is involved with several MS medical-advisory boards, as their standard-of-care and causation expert witness. Dr. Kantor testified that he believes that Mrs. Keister has MS and that she had “at least biological MS” at the time she was seen by Dr. Kar. In their depositions, the experts for Neurology Consultants and Dr. Kar testified that the September 2018 MRI did not contain indications that Mrs. Keister had MS and that the medical evidence supported the conclusion that her medical conditions were caused by something other than MS.
On May 21, 2024, Neurology Consultants and Dr. Kar filed a joint summary-judgment motion in which they contended that the Keisters had “failed to present expert testimony establishing that the alleged breach of the standard of care by Dr. Kar proximately caused any harm to Mrs. Keister.” In making that argument, the defendants relied exclusively on Dr. Kantor’s statements that, “[f]rom my experience and the body of literature, I think that delaying diagnosis and, even more delaying treatment, can make a patient have a worse outcome. Do I know specifically in [Mrs. Keister’s] case, no.”
On August 7, 2024, the circuit court held a hearing on the defendants’ summary-judgment motion. On August 9, 2024, the circuit court granted the defendants’ motion.
On September 26, 2024, the circuit court held a hearing on the Keisters’ postjudgment motion and the defendants’ motion to strike Dr. Kantor’s supplemental affidavit. The following day, September 27, 2024, the circuit court entered an order that granted the defendants’ motion to strike Dr. Kantor’s supplemental affidavit and that denied the Keisters’ postjudgment motion. The Keisters filed a timely appeal.
The Supreme Court of Alabama stated in its February 6, 2026 Opinion: “The question that remains is whether Dr. Kantor’s deposition testimony failed to establish a causal link between Dr. Kar’s failure to inform Mrs. Keister of the September 2018 MRI results and Mrs. Keister’s condition in April 2020 when she was finally diagnosed with MS and began treatment for that condition.”
“[T]he better-position principle holds that a plaintiff must present substantial evidence that, if the plaintiff had received medical treatment that meets the standard of care, such treatment would have placed the plaintiff in a better position than she was in after receiving inferior medical care … In their summary-judgment motion, the defendants did not challenge that the Keisters had presented substantial evidence as to their allegations that Dr. Kar had breached the standard of care. The Keisters asserted — and Dr. Kantor testified — that Dr. Kar had breached the standard of care by not informing Mrs. Keister of the September 2018 MRI results and by not performing follow-up care that would have
confirmed that Mrs. Keister had MS. Thus, here we are concerned with what probably would have happened if Dr. Kar had told Mrs. Keister about the MRI results and if Dr. Kar had performed follow-up care that confirmed Mrs. Keister had MS. We are not concerned with whether Mrs. Keister would have sought medical treatment for her MS from other
doctors or with whether such other doctors Mrs. Keister might have seen would have diagnosed her with MS and treated her for that condition.”
“[T]he defendants’ actual contention is that there is no evidence indicating that, if Dr. Kar had informed Mrs. Keister of her MRI results and if he had performed follow-up care that would have confirmed her MS diagnosis, Mrs. Keister’s health would have been in a better condition than it was when she was diagnosed and treated for MS in April 2020. Again, that contention is based on a single portion of Dr. Kantor’s deposition, in which he stated: “From my experience and the body of literature, I think that delaying diagnosis and, even more delaying treatment, can make a patient have a worse outcome. Do I know specifically in [Mrs. Keister’s] case, no.””
“Dr. Kantor’s testimony consisted of far more than the bare statement that he did not know if Mrs. Keister’s outcome would have been worse … Dr. Kantor never stated that the delay in Mrs. Keister’s diagnosis and treatment would have made no difference in her condition … as the Keisters observe, that statement could be interpreted to mean that Dr. Kantor could not know for certain that Mrs. Keister would have been better if she had been diagnosed and treated at the time she was seen by Dr. Kar.”
The Supreme Court of Alabama stated: “In short, at the very least, the statement in Dr. Kantor’s testimony upon which the defendants have relied for a summary judgment could be understood as ruling out that Mrs. Keister would have had a better outcome if she had been diagnosed with MS and treated at the time she saw Dr. Kar, but it also could be understood as merely stating that Dr. Kantor did not know for certain that Mrs. Keister would have had a better outcome.”
The Supreme Court of Alabama concluded: “Dr. Kantor’s testimony, when viewed in its totality and in the light most favorable to the Keisters, shows that he believed that Mrs. Keister’s condition worsened as a result of Dr. Kar’s allegedly substandard care. At the least, there is a conflict in Dr. Kantor’s testimony concerning causation, and it should be left to a jury to decide whether Dr. Kar’s alleged breach of the standard of care caused Mrs. Keister to be in a worse physical condition than she otherwise would have been if she had been informed by Dr. Kar about the results of the September 2018 MRI and had received follow-up care. We agree with the circuit court that Dr. Kantor’s supplemental affidavit was due to be stricken because it was not timely filed. However, we also conclude that the balance of Dr. Kantor’s testimony presents an issue of fact as to whether Dr. Kar’s failure to inform Mrs. Keister about the September 2018 MRI results and his failure to perform follow-up care caused Mrs. Keister’s MS condition to be worse than it would have been if she had received care from Dr. Kar that met the required standard. Therefore, the summary judgment in favor of the defendants is reversed, and the case is remanded for further proceedings.”
Source Keister v. Neurology Consultants of Huntsville, P.C., SC-2024-0718.
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