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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.
Received February 24, 2003;
accepted after revision March 4, 2003.
Address correspondence to L. Berlin
(lberlin{at}rsh.net).
Introduction
 Top Introduction Excerpts from Testimony of...The Expert Witness: Ignorant...Historical PerspectiveThe Expert Witness, 2003:...The Expert Witness, 2003:...Standard of CareExpert Witness FeesSummary and ConclusionsReferences |
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Men at some time are masters of their fates: The fault, dear Brutus, is not in our stars, But in ourselves.
William Shakespeare [1]
Excerpts from Testimony of 12 Expert Witnesses
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Plaintiff's expert witness (W): To make the correct diagnosis on an X ray.
A: Are you saying, Doctor, that every time a radiologist misses a diagnosis on an X ray, he or she is guilty of malpractice?
W: Yes.
A: Have you ever missed an abnormality on an X ray?
W: Not that I'm aware of.
A: Doctor, you have told us you are an examiner for the American Board of Radiology. If you were testing a resident for board certification, and there was this abnormality on the chest radiograph, and that resident didn't describe that abnormality on the report, are you saying that the resident would fail the examination?
W: Absolutely.
A: Doctor, tell us again what position you hold in the American College of Radiology and how that helps you to form an opinion in this case.
W: I have been elected to the Board of the American College of Radiology and my assignment is to be in charge of quality assurance for all the United States. As such, I will tell you that this radiologist's report is inadequate. Furthermore, it would not suffice if this man were in my radiology group.
A: Doctor, please tell us why you feel that the missing of this radiographic abnormality amounts to negligence.
W: I looked at this film as a neutral and with complete disinterest, and saw the lesion immediately—cold—without a history or clinical information.
A: Doctor, do you think the missed lesion is subtle?
W: No, even a student could see a lesion on these films.
A: Doctor, would you call this lesion obvious?
W: Yes, the abnormality was so obvious, my secretary saw it from across the room.
A: So, Doctor, unless a radiologist is certified by the American Board of Radiology, that radiologist would not be qualified to interpret X rays?
W: Correct.
A: And if a radiologist who is not board-certified was to review X rays, in your opinion that physician is not qualified to do so?
W: Correct.
A: Doctor, in your experience, do you know if you have ever had occasion to miss a nodule on a chest X ray?
W: Yes.
A: On how many occasions?
W: I don't know. Unfortunately, I see the ones other people miss, and they see the ones that I miss.
A: Do you have any estimate?
W: Very rarely.
A: What does that mean?
W: Maybe once or twice in my life.
A: So, Doctor, any time, even retrospectively, an abnormality is missed then, in your opinion, that is a deviation from the standard of care?
W: Yes, a miss is not the standard of care. It's a mistake, and you can't say a mistake is the standard of care. A: Doctor, isn't it true in the field of radiology oftentimes radiologists make a diagnosis of cancer and they look back at prior mammograms and they may see signs of that cancer earlier that they did not note initially?
W: Yes, that is true.
A: Okay. In your opinion, if that happens with microcalcifications that were not reported on an earlier mammogram, do you believe that in 100% of the cases the radiologist who did not call the calcifications deviated from the standard of care?
W: Yes, they have deviated from the standard of care.
A: And so that I understand then, at least in your opinion, you think it is reasonable to expect every radiologist to recall any grouping of microcalcifications that later turns out to have been malignant?
W: The answer is yes.
A: So in your opinion that is a reasonable standard to hold all radiologists to, and you would expect other radiologists who specialize in mammography to agree with you?
W: I would expect that.
A: Doctor, does the failure to observe any calcifications on any mammogram constitute malpractice?
W: Yes.
A: Have you ever missed calcifications on a mammogram?
W: I wouldn't say I missed them. We're talking about sensitivity levels. There is a difference between a sensitivity and a miss. A miss is a mistake. A miss is malpractice, if it has some detrimental effect. You look back to all the previous films when you are dealing with a newly diagnosed cancer to see if it may have been discoverable earlier or whether your sensitivity level was at a higher or lower bar...
A: Okay.
W:...and if you see something looking back and say to yourself, it was a cancer then, and I diagnosed it now, then you've got a miss.
A: That's never happened to you?
W: No.
A: Okay.
W: If you look back at the earlier films, and you say, well, this is the area, could I have called it, do I see something in retrospect, might there be something in retrospect, then that is not a miss. That is a sensitivity.
A: All right. That latter description has occurred to you?
W: That has occurred to everybody.
A: Okay. And that latter description can occur and that is not malpractice?
W: No, that is not.
A: Okay. Very good.
The Expert Witness: Ignorant of What He's Most Assured?
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TopIntroductionExcerpts from Testimony of...The Expert Witness: Ignorant...Historical PerspectiveThe Expert Witness, 2003:...The Expert Witness, 2003:...Standard of CareExpert Witness FeesSummary and ConclusionsReferences |
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Notwithstanding that expert witnesses are expected to be sufficiently knowledgeable to proffer realistic assessments of the appropriate standard of medical care and whether a defendant physician complied with or breached it, many in the legal and medical communities have often expressed doubts that many physicians are competent to do so. A perusal of the excerpts shown not only fails to dispel such doubts but perhaps may even impute a meaning totally different and never previously envisioned to Shakespeare's words in Measure for Measure [4]:
Man, proud man, Dressed in a little brief authority, Most ignorant of what he's most assured.
In an article published last month in the American Journal of Roentgenology [5], I discussed "false" expert witness testimony and whether penalties can be levied against physicians who indulge in such activity. This article will take a different tack and focus not on the kind of false testimony that is often ascribed to prevarication, but rather on testimony about which experts who feel most assured may in fact be most ignorant.
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The lawyers, acting as generals, lead the experts up to conflict, enthused with the idea that the truth is the great object of the struggle. In reality, both sides care nothing for the truth; winning the case is paramount to every other object. The expert physician is seductively drawn up to make statements, then driven to retract or qualify them and pressed to perjury, or so near it that it will be difficult to draw the line.... He is made to give a jumbled, confused mass of half truths and facts open to question.... Both sides avoid informing the jury, and are always eager to deceive them.
An article published in an 1897 issue of the Harvard Law Review [8] also made reference to the low esteem in which expert medical testimony was held by creating a hypothetic opening statement from an attorney to a jury: "Gentlemen of the jury, there are three kinds of liars: the common liar, the damned liar, and the scientific expert."
It was hoped that the discovery at the end of the nineteenth century of a new kind of medical evidence, the "X-ray photograph," would restore some degree of confidence to medical testimony. First, however, images produced by X rays had to be established as credible evidence. The first appeals court decision dealing with the question of whether radiographs could be submitted as evidence in an American courtroom was rendered by the Tennessee Supreme Court in 1897 [9]. The attorney representing a young man who had been injured by the fall of a freight elevator in a storehouse attempted to enter into evidence an "X-ray photograph" that showed "overlapping bones of one of the legs of plaintiff." The defendant's counsel objected, and the case eventually reached the Tennessee high court, which allowed the submission of this "new and interesting process...[that would] reveal to the natural eye the entire structure of the human body [with] its various parts photographed as if its exterior surface has been [removed]." Indeed, radiographs did provide objective visual evidence, but interpretations by expert witnesses of what the radiographs were purported to reveal continued to be fraught with inconsistency and arbitrariness.
The Expert Witness, 2003: The Legal Perspective
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In the context of the frequent polemics that occur between the legal and medical professions with reference to medical malpractice, the common perception exists that the recent proliferation of medical malpractice cases somehow is due to the onerous efforts of lawyers. Without being drawn into that argument, it has been the experience and observation of this Court that in all the medical malpractice trials over which it has presided, the ultimate beneficiaries in an economic sense are truly the physicians who demand and usually obtain exorbitant compensation for their testimony as expert witnesses. Ordinary checks and balances are non-existent in medical malpractice cases and the standard appears to be to get whatever the traffic will bear. In too many medical malpractice cases, unfortunately, the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses.
The Illinois Supreme Court has also chimed in with similar, albeit less stinging, sentiments [11]:
Many experts today spend so much of their time testifying throughout the country that they might be deemed not only experts in their field but also experts in the art of being a persuasive witness and in the art of handling cross-examination. Little has the nonlitigating public (including the jury) realized the true rhetorical masterpieces that come from the lips of medical experts.... [There is] a growing number of experts whose livelihood is dependent in large part upon the litigation process. Such experts with their vast amount of litigation experience become exceptionally proficient in the art of expert witness advocacy.... The financial advantage which accrues to an expert witness in a particular case can extend beyond the remuneration he receives for testifying in that case. A favorable verdict may well help him establish a "track record" which, to a professional witness, can be all-important in determining not only the frequency with which he is asked to testify but also the price which he can demand for such testimony.
Attorneys, judges, and many trial experts themselves are well aware that certain expert witnesses appear particularly willing to testify that medical negligence has occurred, while others appear particularly inclined to testify that there was no deviation from the appropriate standard of care.
A recent article in the Georgetown Journal of Legal Ethics [8] pointed out that a major factor contributing to inaccurate expert witness testimony is the inherent conflict between the goals of attorneys and the goals of scientific experts:
Attorneys work in an adversarial system and look to sway the trier of fact with the most articulate, understandable, presentable, and persuasive expert, rather than the best scientist. In contrast, science requires that the expert focus solely on the evidence without the influence of the parties' goals.
The article then identifies another inherent problem in expert testimony related to our adversarial system:
If there are 1000 experts in a specific field, and 995 subscribe to one view of an issue, and the other five hold a different view, it is likely that the two experts who appear in court will possess opposing views if litigation surrounds that particular issue. In this situation, the fact-finder may have no way of knowing the distribution of opinion among experts in the field, especially since both sides tend to call a similar number of witnesses, and from the layperson's perspective they all appear well credentialed.
Another legal scholar recently observed that [12]:
Expert witnessing has become a profession in and of itself with "hired guns" available for rent to the highest bidder. The sometimes-enormous fees paid to medical experts create reason to doubt their objectivity.... Jurors may choose to believe one expert over the other on the basis of factors irrelevant to the scientific merit of their opinion, such as the expert's appearance, tone, and demeanor.
Finally, a 1997 article published in The Journal of Legal Medicine concluded [13]:
Capitalistic, market-driven incentives are in place. Witnesses who help win cases are hired again. Unpersuasive witnesses are removed from attorneys' lists. Under such a market system, it is not surprising that the medical community is beginning to question the veracity of expert witnesses.
The Expert Witness, 2003: The Medical Perspective
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Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge. The medical witness must not become an advocate or a partisan in the legal proceeding.
In providing expert medical testimony, radiologists and radiation oncologists should exercise extreme caution to insure that the testimony provided is non-partisan, scientifically correct, and clinically accurate.
The ACR Standard on The Expert Witness in Radiology [16] that became effective January 1, 2003, includes the following language:
The expert witness should be qualified for the role and follow clear and consistent guidelines.... The expert witness should be a physician with the following qualifications:...education, training, and practical experience, as well as current knowledge and skill concerning the subject matter of the case, including in a medical liability case the relevant standard of care....
In a medical liability case, the expert opinion should be based on the information available at the time of the incident now under review. Information, facts and results of imaging studies performed after the incident generally should not be used to formulate an opinion. It should be recognized that physicians have different levels of expertise that are still within the standard of care.... Although the nature of legal proceedings is adversarial, the expert witness must be as impartial and objective as possible.
The statements of the American Medical Association and the ACR represent goals to which experts should aspire. Unfortunately, some experts do not even come close. One medical researcher [17] has accused certain experts of displaying "ignorance and irresponsibility" and of "not functioning as scholars, but as partisans who felt that it was their job to win the case, rather than provide the court with an objective evaluation." The researcher then added [17]:
What prompts physicians and scientists to provide the court with testimony that is unsound or untrue? It may be the ego gratification of being called an expert and the high level of remuneration received by some experts. I believe that the most important factor in many instances is that the expert is unaware of his or her proper role in the courtroom.
A radiologist [18] who claimed to have reviewed many "failure-to-diagnose" lawsuits and found that 30% of them were due to "indefensible mistakes" wrote:
It is essential that we demonstrate our ability and willingness to weed out those in our ranks who are incompetent or negligent. At the same time we must remind ourselves to think of each patient as an individual, not just part of a stack of films to be read. One may wonder what this radiologist perceived his proper role to be in the courtroom.
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TopIntroductionExcerpts from Testimony of...The Expert Witness: Ignorant...Historical PerspectiveThe Expert Witness, 2003:...The Expert Witness, 2003:...Standard of CareExpert Witness FeesSummary and ConclusionsReferences |
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The standard of medical care is determined through a complex interaction among physician leaders, professional journals and conferences, networks of colleagues, and external authorities such as government or professional societies [21, 22]. A multitude of state and federal appeals court decisions over the years have addressed the question of what constitutes the standard of nonradiologic and radiologic medical care, many of which I have referenced in previous articles [21, 23, 24]. In simple terms, the baseline for establishing a standard of care is the standard of a "reasonably prudent person." In other words, if the defendant physician fails to exercise the degree of care and prudence that a reasonable physician in similar circumstances would exercise and the patient is injured, then the defendant physician is negligent [22].
From a radiologist's perspective, the standard of care is more nebulous than absolute. A Wisconsin appellate court discussed the standard of radiologic care in this manner [25]:
Medicine is not an exact science and even the very best of doctors can be wrong... Radiologists miss a certain percentage of abnormalities despite using extraordinary efforts. Finding a radiologist negligent for his errors in perception holds radiologists to a standard of perfection, a standard that is impossible and one under which all radiologists would be negligent....
True, physicians too often have a tendency to encourage the aura of an infallibility they do not possess. Theirs is not an exact science, and even the very best of them can be wrong in diagnosis or procedure. The question, however, is not whether a physician has made a mistake; rather the question is whether he was negligent.... A radiologist may review an X ray using the degree of care of a reasonable radiologist, but fail to detect an abnormality that, on average, would have been found.... Radiologists simply cannot detect all abnormalities on all X rays.... The phenomena of "errors in perception" occur when a radiologist diligently reviews an X ray, follows all the proper procedures, and uses all the proper techniques, and fails to perceive an abnormality, which, in retrospect, is apparent.... Errors in perception by radiologists viewing X rays occur in the absence of negligence.
Potchen and Bisesi [26] observed,
The standard of care in the practice of radiology is not necessarily what is most often done nor what optimally should have been done in retrospect. Ultimately, the standard of care becomes whatever a contest of experts can persuade a jury is the most appropriate standard for the case at hand.
One concept remains absolute, however, a concept with which no court has ever taken issue: "Perfection is the social aspiration, but not a legal requirement; an honest effort in conformity with customary standards is all that can be demanded of physicians" [12].
A recent letter to the editor of the American Journal of Roentgenology by a Wisconsin radiologist sums up the frustration that exists regarding the connection between standard of care and expert witnesses [27]:
The supposed position of most radiologists that if a radiologist misses a diagnosis that, on retrospective evaluation, was present on radiographs, that miss cannot be considered anything but malpractice...bothers me more than a little.... This position is taken despite the fact that a certain level of human error is unavoidable, even on the part of the most conscientious radiologist.
Who fosters the idea that our work must be error-free or malpractice? Who fosters this idea of infallibility which sets the table for trial lawyers and the like?
Perhaps the single answer to both of these questions lies in a paraphrasing of the Shakespeare quotation that opens this article: The fault, dear letter writer, lies not in the lawyers, but in our expert witnesses.
What motivates a radiologist to act as an expert witness in a malpractice case? It may well be a sense of duty, a belief in justice, or simply idealism. Or, in certain cases, it may be ego, self-aggrandizement, anger, or envy, or simply a spirit of competitiveness or warlike aggression. Or, in other instances, it may be sympathy for a medical colleague, a commitment toward protectionism, or simply a distaste for our American legal system. Or it can be a quest for financial gain.
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...the growing number of experts whose livelihood is dependent in large part upon the litigation process. Such experts with their vast amount of litigation experience become exceptionally proficient in the art of expert witness advocacy.
A federal district court [28] has characterized physicians with the "dubious title of professional expert witness" as being able to "dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves." The court then added:
There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert's testimony, especially when it is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors.
An Ohio court addressed the question of expert witness fees more directly [10]. There, a physician acting as an expert witness submitted a bill for $500 per hour for an in-office audio deposition and $750 an hour for an in-office video deposition. The opposing counsel refused to pay this amount and asked the court to reduce the fee. The court reduced the fee to $250 an hour, angrily explaining:
The hourly rate of $500 for an in-office deposition or an hourly rate of $750 for an in-office video deposition...without any significant overhead, is simply unconscionable. What rational basis exists for the disparity of the hourly rate between a written deposition and a visual deposition is incomprehensible to this Court.... Analyzing [the physician's] rate, based on a standard 40-hour work week, would produce for [the physician] $1,040,000 to $1,560,000 yearly. Preposterous.
This Court has no doubt that [the physician] is indeed a well-qualified physician and that he has the qualifications and expertise to testify in this particular case. He certainly must be compensated for his efforts. What charges are made by [the physician] to his patients in his work environment is of no concern to this Court. But when he participates in the justice system as a witness where our citizens seek justice, he must submit to the standards...which require that an expert witness is not free to arbitrarily dictate his compensation and burden his adversary with whatever price tag he decrees... [This] can and does have cataclysmic and unwanted results in the justice system and must be discouraged at all costs.... The mandate [of the Court] is not that an adverse expert will be paid his heart's desire, but that he will be paid a reasonable fee.
[The physician's] hourly rate is astronomical and this Court has the duty to strike a balance between the services to be rendered and the remuneration to which an expert is entitled. It will not knowingly sit idly by and permit [the physician] or for that matter any other litigant or witness, to undermine the efficacy of the court system. It is absolutely imperative for the courts to impose their powers in the face of such "expert fee-jacking." Acquiescence in or acceptance of such extortionate conduct by the courts simply erodes their effectiveness as treasured beacons in our communities.
In a similar case in Texas, an orthopedic surgeon acting as an expert witness billed the opposing counsel $1512 for a videotaped deposition that lasted approximately 2.5 hours. The opposing counsel refused to pay the fee, claiming that it was unreasonable. The trial court reduced the fee to $700 and the orthopedic expert appealed. The Texas appellate court upheld the reduction [29], ruling that the original $1500 fee was "unreasonable and therefore excessive."
A group of medical—legal scholars [13] observed in 1997:
Many physicians choose to serve as witnesses because they recognize an opportunity to contribute to the administration of justice. There remain, however, a number of physicians whose intentions and objectivity appear less clear. These professional expert witnesses are motivated by financial incentives rather than fairness or justice. The hallmark of these physicians is their willingness to advocate for fringe positions for pay.
Indeed, the fees charged by some medical experts can be excessive or astronomical. The current going rate for medical experts ranges from $300 to $700 an hour, and for appearance at trial, from $3000 to $5000 a day. Some physicians, however, charge as much as $1000 or more an hour for deposition testimony and $10,000 or more a day for courtroom testimony (Kelly EM, personal communication). Expert witness fees are not always divulged, and thus in certain instances charges may even be higher.
Neither the principles of ethics of the American Medical Association nor those of the ACR address the issue of what constitutes reasonable fees for expert witnesses, but both groups emphasize that it is unethical for a physician to accept compensation that is contingent on the outcome of litigation [15, 16, 30].
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TopIntroductionExcerpts from Testimony of...The Expert Witness: Ignorant...Historical PerspectiveThe Expert Witness, 2003:...The Expert Witness, 2003:...Standard of CareExpert Witness FeesSummary and ConclusionsReferences |
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As has been pointed out previously [5], the courts are loathe to punish in any manner expert witnesses whose testimony is improper or even untruthful. The line that distinguishes ethical obligations from legal duties is unclear, but ethical obligations typically exceed legal duties [15]. If the courts, then, cannot or will not take remedial action against experts who deviate from legal precepts, is there any body or group that at least will take such action against experts who fail to conform to ethical principles? The answer lies with state medical licensing boards and medical specialty organizations.
Notwithstanding that a recent survey of state medical licensing boards disclosed that two thirds of them have the authority to discipline a physician witness for fraudulent testimony [13], instances of their doing so are extremely rare [5]. Various medical—legal scholars have suggested that medical licensing boards must begin allocating a portion of their resources to studying alleged abuses on the part of expert medical witnesses and undertaking appropriate disciplinary measures [13]. However, it does not appear likely that state licensing boards will ever be particularly effective in improving the reliability of expert witness testimony.
Kassirer and Cecil [31], writing recently in the Journal of American Medical Association, urged the medical profession to monitor the manner in which medical testimony is presented in court and to participate in strengthening the presentation of such testimony. Physicians can improve the quality of medical testimony, contend these researchers, and, in return, "the legal profession must do more to educate physicians about the different roles of litigation and the constraints under which the courts seek to resolve conflicts." Those researchers continue:
Physicians can prepare amicus briefs explaining professional standards and practices.... They can also participate on panels that assist the courts in evaluating medical testimony.... Standing commissions of physicians might also address some confusion in the courts, such as the extent to which the medical literature including textbooks should be regarded as authoritative statements of current knowledge... The courts need help from the medical profession to help them strengthen the role of medical testimony in litigation. The medical community should respond by correcting misrepresentations of medical practice and assisting in the development of standards that encourage thoughtful and informed consideration of medical testimony by judges and juries.
As has been suggested previously [5], professional organizations such as the ACR can consider monitoring expert testimony by its members, but because of the adversarial nature of our judicial system and the inherent disagreement if not actual clash that exists among opposing experts, it will often be difficult for any organization or individual to distinguish simple disagreement from outright falsification. Nevertheless, in cases of blatant misrepresentation, perhaps punitive action can be taken.
Should witness fees be monitored? Should guidelines for fees be issued? Although third-party payers such as the government and insurance companies formulate pay scales for medical services, none as yet has developed schedules or guidelines that cover fees for expert witness or other courtroom testimony. Would published expert witness payment schedules curtail aberrant testimony? We can only speculate as to the answer.
Education is the best solution available to us. The ACR, the Radiological Society of North America, the American Roentgen Ray Society, and other subspecialty radiology organizations seem to be in the best position to conduct educational seminars that will provide consistency in and improve the quality of radiologic expert testimony. The mission statements of these organizations would seem to encompass educating potential expert witnesses in how to properly establish the standard of radiologic care and assess whether a defendant radiologist did or did not conform to it in any specific case.
Undoubtedly, some radiologists who take on the role of courtroom expert witness do so for nefarious reasons. They may seek the high fees or possess other motives that compel them at times to testify untruthfully. Educational programs sponsored by radiologic organizations will do little to curtail the practices of these individuals. Perhaps state medical licensing boards or ethics committees of professional organizations can eventually take action to put an end to such activities.
Most radiologists, whether they have many years of experience or are newly trained, whether they come from the academic or the private sector, who step forward to assume the role of expert witness for either the plaintiff or the defendant are sincere, well-trained, and honorable individuals intent on doing the right thing. It is these radiologists who would benefit from educational programs conducted by legal and medical professionals under the sponsorship of radiology organizations.
There are myriad legal and technical concepts related to expert witness testimony at deposition or in the courtroom of which radiologists should be made aware. For example, as expert witnesses, radiologists will be asked to be seated in the figurative or literal witness chair; they will not be asked to stand on a soapbox or behind a lectern in a conference room or on the podium of an auditorium. As expert witnesses, radiologists will be required to answer as objectively and dispassionately as possible questions posed under direct or cross-examination by attorneys pertaining to their own credentials, experience, and other qualifications; however, they will not be required to inflate their credentials or qualifications for the purpose of diminishing the performance of, or demeaning in any other way, the defendant radiologist. As expert witnesses, radiologists will be required to testify as to what they believe to be the appropriate standard of care applicable under the circumstances of the specific case being adjudicated—in other words, what a reasonable practicing radiologist should have done or not done. As expert witnesses, radiologists will be required to state their opinion as to whether a defendant radiologist complied with, or deviated from, the standard of care; however, they will not be required to expound, lecture, philosophize, professorialize, or pontificate about political, socioeconomic, radiologic, or other professional matters or personal pet peeves not germane to the case at hand. As expert witnesses, radiologists will be required to proffer criticism when warranted, but they will not be required to offer inflammatory or other pejorative comments.
Perhaps the Ohio judge quoted earlier [10] is correct in stating that the malpractice litigation quagmire in which physicians find themselves is not the fault of the "onerous efforts of lawyers," but rather of physicians serving as medical expert witnesses who, either deliberately because of "opportunism and greed," or inadvertently, exploit the judicial system—in other words, physicians who become "miasmatic experts."
The ideal expert witness is knowledgeable about the standard of radiologic care in a given case; the miasmatic expert is not. The ideal expert witness is objective and nonpartisan; the miasmatic expert is not. The ideal expert witness presents the community at large with the best of what the specialty of radiology has to offer; the miasmatic expert does not. In the final analysis, the radiology profession must look to itself to transform the expert witness from one who is miasmatic to one who is ideal.
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