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Malpractice Issues in Radiology |
1
Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point
Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
2
Department of Radiology, University of Michigan Medical Center, 1500 E.
Medical Center Dr., Ann Arbor, MI 48109.
Received October 11, 1999;
accepted after revision November 10, 1999.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the authors. All opinions expressed
herein are those of the authors and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
The Case
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The TIPS procedure was started by an interventional radiology fellow who had already performed a dozen TIPS procedures. The radiology fellow was under the supervision of an attending interventional radiologist who had performed 30 TIPS procedures. The fellow catheterized the patient's right internal jugular vein and then passed a guidewire through it and the vena cava, finally lodging the wire in the right hepatic vein. Because the fellow was unable to enter the portal vein with a Colapinto needle (Cook, Bloomington, IN) or to view the portal vein sonographically, he elected to catheterize the patient's right femoral artery, passing a catheter through it and then into the superior mesenteric artery. The fellow then injected contrast material into the femoral artery catheter to view and localize the portal vein. Next, the fellow advanced the Colapinto needle along the guidewire into the right hepatic vein and pushed it through liver tissue into the right portal vein. Then, the fellow advanced the flexible guidewire through the liver and into the right portal vein and anchored its tip in the splenic vein. Thus far, no untoward events had occurred.
The fellow then proceeded to advance a catheter over the guidewire with the intent of enlarging the passage in the liver. The fellow intended to follow this step with the introduction of a balloon catheter and a wire mesh stent. However, as the catheter was advanced over the guidewire through the liver tissue, it suddenly overcame resistance by the liver substance and carried the wire forward, forming a loop of wire that buckled through the inferior wall of the portal vein. The tip of the wire remained at the splenomesenteric confluence. The attending interventional radiologist immediately stepped in as primary operator. The patient's blood pressure dropped and heart rate increased. Because the patient's vital signs remained stable (although abnormal thereafter) and no contrast extravasation was present on the portal venogram, the radiologist and the fellow decided to complete the TIPS procedure. A balloon catheter and wire-mesh stent were successfully placed, the portosystemic gradient was reduced from 46 to 16 cm of saline solution, and the patient was transferred to the hospital's medical intensive care unit. However, shortly thereafter, the patient began to hemorrhage from the portal vein. Despite resuscitative efforts, the patient died in a matter of minutes.
One year later, the family of the patient filed a medical malpractice lawsuit against the university, claiming that the patient's death resulted from the negligence of the interventional radiology fellow.
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The defense attorney representing the university hospital initiated discovery proceedings by requesting that the court order the plaintiff's attorney to produce his expert radiology witnesses for depositions. The plaintiff's attorney had originally named two experts, one who was the writer of the affidavit and another who was an interventional radiologist from a teaching hospital in another state; however, the latter expert witness withdrew from the case. Thus, the attorney produced only the writer of the affidavit for deposition.
At the deposition, the defense attorney asked the plaintiff's expert about his qualifications. The expert testified that although in the past he had "developed" angiographic and interventional laboratories in two hospitals, he did not consider himself an interventional radiologist. The expert said he was a practicing general radiologist with experience in interventional radiology, but did not possess a Certificate of Added Qualification in interventional radiology. The expert was not a member of the Society of Cardiovascular and Interventional Radiology and had never taken any specific advanced training in interventional radiology. The plaintiff's expert acknowledged that he had never performed a TIPS procedure personally, but he had observed or assisted in several of them. The expert also admitted that he had not performed any medical research on the subject of TIPS procedures, did not possess privileges to perform TIPS in any of the hospitals at which he was a medical staff member, and had not discussed TIPS procedures with other interventional experts. When asked on what he based his opinions about TIPS procedures, the expert said that his opinions were based on "Information I have accumulated from various sources over a period of time."
Later in his deposition, the expert asserted that the laceration of the patient's portal vein resulted from the negligent conduct of the interventional radiology fellow. The expert stated that the radiology fellow had failed to keep the flexible guidewire "under control" and that this caused the wire to buckle and lacerate the portal vein. The expert explained his conclusion as follows:
The way in which the catheter and/or guidewire is advanced bespeaks to the skill and judgment and technique of the operator. And if it's not appropriate, that can result in an injury, which is what I believe happened here. That's where the negligence is focused.... It would have been more appropriate to chose a stiffer guide."
The expert went on to say that when the defendant radiology fellow noticed that the wire was buckling, he should have been "forewarned," and immediately withdrawn the wire. When asked by the defense attorney to find in either the medical record or deposition testimonies substantiation that the defendant radiology fellow had been "forewarned" that the wire was buckling, the expert admitted that he could find none. The defense attorney then rhetorically asked the expert, "In order to arrive at your opinion, you need to fill in facts that aren't in the record or deposition testimony, correct?" The expert answered in the affirmative.
The plaintiff's expert also answered "yes" to two additional questions posed by the defense attorney: "Can laceration of the portal vein in a TIPS procedure occur without negligence?" and "If the defendant-radiology fellow in this case wasn't given a `forewarning' that the wire was about to buckle, could the portal vein laceration occur without his negligence?"
Believing that the radiology expert was unqualified to render an opinion as an expert witness, the defense attorney for the university requested that the court disqualify or strike the physician as an expert. In a brief prepared for the court (Boothman RC, personal communication), the defense attorney explained that any party who produces an expert witness in a lawsuit must show that the expert possesses the necessary learning, knowledge, skill, and experience to give expert testimony. A simple statement that "I know the standard of care" is not enough, claimed the defense attorney. The plaintiff's expert in this case, charged the attorney, was turning a recognized complication into negligence by making up facts about a so-called forewarning of buckling of a guidewire.
The defense attorney went on to charge that the plaintiff's expert was unqualified to render expert opinions because he had no training in interventional radiology, did not consider himself an interventional radiologist, had never performed a TIPS procedure, had no documentation proving he had assisted other physicians in performing TIPS procedures (and consequently was unfamiliar with the procedure), was unfamiliar with the literature regarding TIPS procedures, and lacked credentials to perform TIPS procedures in any hospital at which he had staff privileges.
The defense attorney also asserted that the expert's lack of familiarity with TIPS procedures was blatantly exposed by the fact that he had erred in preparation of the original affidavit in which he claimed that the TIPS procedure was performed inappropriately because the transfemoral, rather than the transjugular, route was used. The defense attorney also said that the expert admitted that the portal vein laceration could have occurred without negligence, and that his opinion that negligence had occurred was based on assumptions that could not be found in the medical record or deposition testimony. The defense attorney's brief concluded that because the expert lacked sufficient training, education, knowledge, and expertise to be an expert, he should be excluded as such by the court.
The attorney for the plaintiff submitted an equally comprehensive and seemingly persuasive, albeit ultimately unsuccessful, brief in rebuttal to the defense attorney's motion. The attorney reminded the court that in the interest of fairness, experts must be afforded the right to undergo direct examination by the attorney who retained the expert and cross-examination by the opposing attorney. The discovery deposition was only cross-examination by the defense attorney, the plaintiff's attorney charged, and thus striking the expert witness at this stage would foreclose the plaintiffs from presenting a complete picture of their case.
The defense attorney "wants to disqualify the expert, because the expert does not routinely do TIPS," continued the plaintiff's attorney, who then added that an expert witness should not be required to satisfy an overly narrow test of his qualifications; any perceived deficiency on the expert's qualifications should go toward the weight, not the admissibility, of his testimony.
The plaintiff's attorney argued that the expert need not be a board-certified subspecialist and that it is sufficient if his training and experience enabled him to testify competently. The plaintiff's attorney then pointed out that the radiology expert for the plaintiff was a board-certified radiologist, had developed two interventional laboratories, had performed other interventional procedures with catheters, had personally observed TIPS procedures in the past, and consequently had more than adequate knowledge to be qualified to speak to standards of care in performing TIPS procedures.
The brief of the plaintiff's attorney then referred to previous decisions rendered by appeals courts that pertained to qualifications of expert witnesses, including the following excerpts:
A witness may be qualified as an expert if he or she has acquired specialized knowledge through experience, training, or education.... A witness need not possess specialized knowledge as a result of experience as well as training and education in order to be qualified as an expert.... Nor need the expert be...an outstanding practitioner in the field in which he professes expertise. Comparisons between his professional stature and the stature for witnesses for an opposing party may be made by the jury, if it become necessary to decide which of the conflicting opinions to believe. But the only question for the trial judge who must decide whether or not to allow the jury to consider a proffered expert's opinion is, `whether his knowledge of the subject matter is such that his opinion will most likely assist the trier of fact in arriving at the truth."
The attorney for the plaintiff then argued that his expert witness was justified in making certain assumptions regarding the alleged negligence of the defendant radiology fellow, by alleging that the fellow had been forewarned about the buckling of the guidewire. "An expert need not actually witness an event in order to render an opinion regarding it," emphasized the attorney for the plaintiff, who then concluded his brief by stating that it would be improper to exclude the plaintiff's expert testimony on the basis of the transcript of his discovery deposition. At a minimum, claimed the plaintiff's attorney, the plaintiff must be afforded an opportunity, through direct examination of the witness at a trial, to qualify the expert as a witness. "The expert's credibility must be made by the trier of fact at the trial, not by a judge before the trial commences."
After deliberating over the oral arguments and the written briefs, the judge ruled in favor of the university hospital and defendant radiologist. The court found that the plaintiff's expert witness was unqualified to testify as an expert and based his opinions on facts not in evidence.
Three weeks later, because the plaintiff's attorney was unable to find another radiology expert witness, the court dismissed the lawsuit against the university hospital and the radiology fellow [1]. In his ruling dismissing the malpractice case, the judge reminded the defendants that they could ask the court to order the plaintiff to pay for all of their court costs and attorney's fees. Ultimately, the defendants agreed not to pursue this request in return for the plaintiff's agreement not to pursue an appeal of the judge's ruling.
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The medical establishment's viewpoint regarding qualifications of expert witnesses is well summarized in the American Medical Association's Code of Medical Ethics [2]. The code simply states:
Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere or medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.
The American College of Radiology is far more specific in dealing with qualifications of radiologists who assume the role of expert witnesses [3]. Recommended qualifications for the radiologist expert witness include requirements that the radiologist must maintain an active practice of radiology, should be certified by the American Board of Radiology or comparable organization, should be familiar with the clinical practice of the subject matter of the case, and should be actively involved in the clinical practice of the subject matter of the case for 3 of the previous 5 years at the time of testimony. In addition, the American College of Radiology lists recommended guidelines for behavior of the radiologist expert witness. These include mandates that the radiologist should review the medical information in the case and the standards of practice prevailing at the time of the occurrence, and be prepared to state the basis of the testimony presented and whether it is based on personal experience, specific clinical references, or generally accepted opinion in the specialty field.
Local state and county courts throughout the United States delineate in a similar fashion the qualifications of expert witnesses in medical malpractice cases. A recent decision issued by the Supreme Court of Illinois is typical [4]:
The expert physician must be a licensed member of the school of medicine about which he proposes to testify... [and] must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in either the defendant physician's community or a similar community.
The Illinois Supreme Court proceeded to discuss the question of whether the expert must specialize in the same area of medicine as the defendant physician [4]:
Whether the expert is qualified to testify is not dependant on whether he is a member of the same specialty or subspecialty as the defendant but, rather, whether the allegations of negligence concern matters within his knowledge and observation.... Restricting the qualification of experts to those physicians who are members of the specialty or subspecialty as the defendant would only upset the balance necessary to an adversarial system without any compensating benefit.
The Illinois Supreme Court then pointed out that it is the judge who must determine whether a potential expert witness is qualified to render opinions in a specific lawsuit [4]:
The trial court has the discretion to determine whether a physician is qualified and competent to state his opinion as an expert regarding the standard of care.... By hearing evidence on the expert's qualifications and comparing the medical problem and the type of treatment in the case to the experience and background of the expert, the trial court can examine whether the witness has demonstrated a sufficient familiarity with the standard of care practiced in the case... [If the expert witness does not satisfy these requirements], the trial court must disallow the expert's testimony.... The requirements are a threshold beneath which the plaintiff cannot fall without failing to sustain the allegations of his complaint.
In her book Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case [5], Marcia Angell discusses the role of the judge in determining whether a physician is qualified to act as an expert witness. Angell points out that guidelines relative to qualifications of expert witnesses were enunciated by the United States Supreme Court in 1993 in a decision that dealt with alleged congenital anomalies caused by ingesting an antihistaminelike drug to combat morning sickness in pregnant women [6]. In the case, the Supreme Court ruled that judges were henceforth required to undertake "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the fact in issue." In other words, it would be the judge himself who would assume the role of gatekeeper in deciding whether specific expert testimony could be presented in courtroom. Although the United States Supreme Court decision is not binding on state courts, a trend among the states to follow the federal lead exists [7].
The discussion thus far has centered on the admissibility of expert testimony. Once a judge rules that expert testimony is admissible, attention then focuses on whether the testimony is credible. Although it is the judge who must determine the admissibility of the expert testimony, it is the trier of fact (jurors in the case of a jury trial, the judge in the case of a bench trial) who must determine the credibility, or weight, of the expert testimony. Because a jury's ultimate verdict is influenced to a large extent by whether it does or does not believe the testimony of a key expert witness, opposing attorneys representing the plaintiff and defendant, respectively, attempt to either bolster, or tarnish, the witness's credibility. The attorney who retained the expert witness emphasizes the credentials, knowledge, and experience of his or her expert witness through direct examination. The opposing attorney attacks the credibility of the expert witness through aggressive and sometimes truculent cross-examination. The Illinois Supreme Court summarized the process this way [4]:
If the trial court determines that the expert is qualified, the [opposing attorney] is then in the position to direct the jury's attention to any infirmities in his testimony or his competency to testify. Cross-examination, argument and jury instructions provide [opposing] counsel with the opportunity and means to challenge the expert's qualifications and the opinion he offers.
In the case described in this article, the credibility of the plaintiff's expert witness was so successfully attacked and diminished by the defense that the judge removed the expert witness even before the lawsuit proceeded to the trial stage.
What perils are incurred when a proposed expert witness is not truly an expert, or testifies to opinions that are not based on solid foundation? There are many. Let us first look at those that affect the party that has retained the nonexpert expert.
The credibility in the legal dispute of the side that has retained the presumed expert witness, whether it be the plaintiff or the defendant, will be severely damaged if the expert witness is either disqualified by the judge or perceived to be incompetent by the jury. In the lawsuit discussed in this article, the plaintiff's case was dismissed by the judge once the expert witness was disqualified, but had the lawsuit not been dismissed and proceeded to trial, the jury almost certainly would have ruled in favor of the defendant. Thus, the plaintiff would undoubtedly have lost in either event. Losing a lawsuit because of an inadequate or incompetent expert witness can be costly. Not only must the losing side pay its own legal and court expenses, but also, as might have happened in this case, the judge may hold the losing party liable for the payment of the costs for the entire legal proceedings of both sides and for other sanctions.
From the standpoint of the physician who purports to be an expert witness and is then declared by the judge to be unqualified or incompetent, adverse consequences may extend far beyond simple embarrassment. To begin with, expert witnesses should be aware that transcripts of depositions and courtroom testimony are public records [3], and as such are easily available to both plaintiff's and defense attorneys. A ruling by a judge in one case that an expert is disqualified or incompetent to testify may haunt and impair that expert's ability to testify as an expert in future cases. In the federal courts, potential expert witness must provide a listing of other cases in which the witness has testified as an expert at trial or deposition within the preceding 4 years [8]. Although this is not a requirement in all state courts, attorneys in any court may still ask for similar listings. Thus, a blemish sustained on an expert witness's qualifications or credibility that appears on an official record of one lawsuit may well come to light and tarnish the expert's reputation or credibility in any or all future lawsuits.
Can expert witnesses who are declared unqualified or incompetent be subject to punitive measures initiated by the courts, state medical licensing boards, or medical professional organizations? We shall briefly explore this question.
It is not likely that any court would undertake action against an expert witness because of inadequate or incompetent testimony, unless that testimony constituted perjury. A 1996 federal appeals court decision [9] accurately reflects the opinion of most courts on the subject of immunity for testimony in judicial proceedings:
Public policy requires that witnesses who are a necessary part of the judicial machinery be privileged against any restraint, excepting that imposed by the penalty for perjury.... The purpose of witness immunity is to ensure that the judicial system functions unimpeded by fear on the part of its particular participants that they may be sued for damages for their role in the proceedings.... The policy considerations underlying witness immunity for testimony in open court apply with equal force to other forms of testimony such as depositions and affidavits.... A threat of a lawsuit for damages can have the same intimidating effect on a witness who testifies by deposition as one who testifies in court....The judicial process depends on the functions of its various "players," and immunity is granted to facilitate the judicial process.... The functioning of the tribunal is seriously handicapped if witnesses, whether they be doctors or lay persons, fear liability from statements made by them that have some relation to the litigation.
Perjury, however, is a different matter. Lying under oath in a deposition in a civil lawsuit is a serious federal crime and federal law allows for punishing those proven guilty of perjury with a fine or imprisonment of not more than 5 years, or both [10].
Let us now turn to professional medical organizations. Certain state medical societies have attempted to institute policies that will monitor and restrain expert witness testimony, and the American Medical Association has agreed to work with these state societies to develop disciplinary measures that can be taken against physicians who provide fraudulent testimony when serving as expert witnesses [11].
Whether state licensing boards are able or willing to penalize physicians who falsely testify as expert witnesses is uncertain. A physician who was charged with inflating his credentials during testimony as an expert witness was fined by the Board of Medicine in Washington, DC, but disciplinary measures attempted by the State Medical Board in Missouri against a physician who gave false information under oath about his credentials failed [12, 13].
Summary and Expert Witness Pointers
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The following pointers will assist both radiologists who choose to serve as expert witnesses and those who feel they are falsely accused of medical malpractice by an incompetent expert witness.
From the perspective of the expert witness:
From the perspective of the radiologist falsely accused by an expert witness:
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  L. Berlin Bearing False Witness Am. J. Roentgenol., June 1, 2003; 180(6): 1515 - 1521. [Full Text] [PDF]
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