An effort by soap opera star Hunter Tylo to hold a therapist liable for her son's drowning death is looking shaky after a Las Vegas judge said she must provide an expert to “give an opinion on proximate cause.”

Hunter Tylo

Tylo originally sued licensed clinical social worker Shanna Downing in April 2006 for violating professional ethics in treating members of Tylo's family, including her son Michael, who had been suffering from seizures. Downing allegedly diagnosed him with a stress disorder.

On Oct. 18, 2007, Michael Tylo, 19, drowned in the swimming pool of his mother's Henderson, Nev., home. The coroner's office found he had a seizure before falling into the pool and, in January, Hunter Tylo filed court papers seeking to add a wrongful death claim to the suit against Downing.

“Michael's death is directly related to the failures, malpractice and other conduct” of Downing and the counseling center where she practiced, Tylo stated in a declaration.

But at a hearing last month, Clark County District Court Judge Timothy C. Williams denied her motion to amend the complaint, saying her attorney would have to present “expert testimony before the Court will grant an amendment on [the wrongful-death] issue.”

“[C]ounsel must have an expert who, after reviewing the evidence and testimony, can give an opinion on proximate cause,” the hearing minutes say.

Under Nevada law, “Liability for personal injury or death shall not be imposed upon any provider of medical care based on alleged negligence in the performance of such care unless evidence consisting of expert medical testimony ... is presented to ... prove causation of the alleged personal injury or death.”

Tylo told Larry King in an interview that Downing's treatment of her family was “a disaster.” According to the motion to amend, the therapist said Michael's seizures would disappear “once the stress in Michael's life was eliminated” and, as a result,

Michael did not receive proper referrals and testing during a critical period of his life so that true diagnoses could be confirmed and good treatment could commence ... [H]ad the proper referral been made ... Michael's death could have been avoided.

That language appears to define the injury as the loss of chance at survival and the Nevada Supreme Court has said that in such cases, a plaintiff “must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care.” Perez v. Las Vegas Medical Center, 805 P.2d 589 (1991).

But Downing stopped treating Michael Tylo some two years before his death and the motion to amend says his new counselor referred him to a neurologist “for proper testing.” Given those facts, is it reasonably probable that Downing's alleged negligence reduced a “substantial chance” of Michael's survival?

By Matthew Heller
3/6/08