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Tami Smith, As Personal Representative of the Estate of Velda Smith, Deceased v. Gary Bubak, M.D.; Wagner Community Memorial Hospital, A South Dakota Corporation

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Submitted: February 16, 2011

Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.

Tami Smith, as a personal representative of the estate of Velda Smith, sued Dr. Bubak and the remaining Defendants (collectively referred to as “Dr. Bubak”) for medical malpractice, claiming that Dr. Bubak negligently failed to transfer Velda Smith to a medical facility where she could have received tissue plasminogen activator (“tPA”) to treat her stroke. To establish that Dr. Bubak’s negligence proximately caused Velda Smith’s injuries, Tami Smith offered expert medical evidence showing that Velda Smith possessed approximately a fifty-eight percent chance of at least a partial recovery had she timely received tPA. Dr. Bubak moved to exclude this expert evidence and moved for summary judgment. The district court*fn1 granted both motions, finding that Tami Smith’s medical evidence was unreliable, and as result, Tami Smith failed to prove causation. Tami Smith appeals, and we affirm.

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