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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.
Received June 25, 2004; accepted after revision June 25, 2004.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author. All opinions expressed
herein are those of the author and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
On a day a member of the radiology group at a community hospital was assigned to the mammography service, the radiologist began interpreting a set of screening mammograms that had been obtained at a satellite facility. The radiologist noted a group of suspicious-appearing calcifications in the left breast and thus recommended that the patient be recalled for a diagnostic study.
One week later, the patient returned for additional studies. The radiologist interpreted the mammogram as suspicious for malignancy, and then approached the patient to discuss the matter with her. The radiologist asked the patient, who was 45 years old, whether she had ever had a previous mammogram and she answered no. On further questioning by the radiologist, the patient offered the information that yes, she had been undergoing annual physical examinations over the past 4 years by her family physician; no, she had not noticed any lumps or experienced symptoms related to the breast; yes, she did have a family history of breast cancer in that both her mother and an aunt had been diagnosed with the disease but were still alive and apparently well; and no, her physician had never suggested that she undergo a screening mammogram until she herself had pressed the issue with him several weeks before. During this conversation, the radiologist told the woman that he was "surprised" (in later testimony, the woman claimed that the radiologist had used the word "shocked," but the radiologist denied using the word) that the family physician had never recommended mammography previously. The radiologist also told the woman that "most radiologists and general physicians these days" believe that routine periodic mammography should begin when a woman reaches the age of 40, especially if a woman has a family history of breast cancer.
The woman was referred to a surgeon at another hospital, where she underwent a mastectomy and chemotherapy. The radiologist had no further contact with the patient.
Eight months later the radiologist received a letter from an attorney stating that on the patient's behalf he had filed a medical malpractice lawsuit against the family physician, alleging his negligence in failing to order annual screening mammograms for the patient when she had reached the age of 40 years. The attorney further advised that it was his understanding that the radiologist had expressed the opinion that the woman should have had "annual mammography" beginning at age 40 and that the radiologist had been "critical" of the family physician for failing to order these examinations. The attorney concluded by requesting that the radiologist send him a letter documenting his opinions.
The radiologist responded in writing that he had "no intention of getting involved in this case, would not speak or write about what he had told the woman at the time she underwent the diagnostic mammogram," and "would in no way offer any opinion about the conduct of the family physician," whom he did "not know and did not care to know."
One month later the radiologist was served with a subpoena ordering him to appear for a deposition to be conducted by the patient's attorney. Now angered, the radiologist contacted a claims representative of his professional liability insurance company for advice. The representative responded that the law required the radiologist to comply with the subpoena and if he failed to do so, he could be held in contempt of court. The representative also offered to retain a defense attorney, whose costs would be covered by the company, to accompany the radiologist. A date for the deposition was set.
The Deposition
At a meeting just before the deposition, the defense attorney explained to the radiologist that he had no choice but to answer all questions of fact related to the radiologist's interpretation of the mammograms and his recollections of the conversation that had been held between him and the patient. "Your opinions, however," said the attorney "are another matter." The attorney went on to advise the radiologist not to state any professional opinions about the medical aspects of the case and that he, the attorney, would object if the plaintiff's attorney insisted on drawing out professional opinions from the radiologist.
At the deposition, the plaintiff's attorney asked the radiologist about his interpretations of the screening and diagnostic mammograms, and the radiologist answered those questions as accurately as he could. The plaintiff's attorney then asked the radiologist to recall his conversation with the patient at the time the diagnostic mammograms were obtained. After a brief dialogue about whether the radiologist had used the word "surprised" or "shocked," the plaintiff's attorney then asked the radiologist to give an opinion about whether the patient "should have had annual mammograms beginning at age 40." On the advice of the defense attorney, the radiologist responded that he was unaware of any formal published standard on the matter and would decline to offer his own opinion on the issue. The plaintiff's attorney then asked the radiologist to offer an opinion as to whether the patient's family physician "should have ordered a mammogram on this particular patient when she turned 40," and if the same physician "had been negligent for failing to do so, especially in view of the patient's family history of breast cancer." On advice of the defense attorney, the radiologist refused to answer the question. At this point, the plaintiff's attorney announced that unless the radiologist answered all questions completely, he would terminate the deposition and request the judge in the case to hold the radiologist "in contempt of court." The deposition then ended.
At a court hearing 2 weeks later, the judge ruled that the radiologist did not have to answer the plaintiff attorney's questions regarding professional opinions, adding that the radiologist "fulfilled his duty as a fact witness" and did not have to "act as an expert witness if he did not wish to do so."
The radiologist never heard from the plaintiff's attorney again and chose not to inquire further about how the woman's malpractice lawsuit was eventually resolved.
Discussion
The Precept to Testify
It is an "ancient proposition of law" that "the public
has a right to every man's evidence," stated the U.S. Supreme Court in
connection with the release of presidential tape recordings in the
Watergate-Richard Nixon affair in 1972
[1]. We do not know how
"ancient" the proposition is, inasmuch as the Supreme Court did
not say. What we do know, though, is that the proposition that all citizens
are required to testify about matters within their knowledge if beckoned by a
court to do so has been a fundamental precept engrained in the law and our
judicial system for more than two centuries. The law that governs the conduct
of malpractice trials in the United States is the common law, a legacy from
the English [2]. The common law
comprises published decisions of state and federal appellate and supreme
courts that serve as bases on which subsequent similar cases are decided. The
fundamental characteristic of both English and American common law is
adherence to precedent. It is therefore not surprising that an 1875 decision
of the Alabama Supreme Court referred to older English treatises when it
emphasized that "Every individual, high and low," is subject to
the needs of the court, and then quoted the following illustration
[3]:
Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor to be passing in the same coach while a chimney-sweeper and a barrow-woman were in dispute about a half-penny worth of apples, and the chimney-sweeper and the barrow-woman were to see proper to call on them for their evidence, could they refuse? No! Most certainly not!
The Alabama Supreme Court continued its commentary on a citizen's duty to testify [3]:
The administration of justice being a source of mutual benefit, to all the members of the community, each is under obligation to aid in furthering it, as a matter of public duty.... Every competent citizen may be summoned by due process of law to appear and render personal service in court, without right on his part to a special compensation for so doing. His time is claimed by the public as a tax paid by him to that system of laws which protects his rights and those of others.
The law allows no excuse for withholding evidence which is relevant to the matters in question before its tribunals.... A person, therefore, who, without just cause, absents himself from a trial at which he has been duly summoned as a witness or a witness who refuses to give evidence, or to answer questions which the court rules proper to be answered, is liable to punishment for contempt.
Twenty-two years later the Illinois Supreme Court echoed this sentiment [4]:
The power to compel the production of testimony, necessary to the decision of issues involved in pending lawsuits, is one of the rights and powers, which is inherent in the very organization of courts of justice. Contempt of court is a disobedience to the rules or orders of the court, which interferes with the due administration of the law. The refusal of a witness to answer any question, which he may be lawfully required to answer, is a contempt of court, and if he persists in his refusal, he may be punished accordingly.
Ordinary Versus Expert Testimony
Nearly a century ago, the Supreme Court of Wisconsin considered whether a
distinction could be drawn between an ordinary witness and an expert witness
and whether the latter could be paid for his or her time. A physician was
called to testify about his examination of a man who had been charged with
murder and had entered a plea of insanity. The physician testified extensively
in a 5-day trial and later billed the county $15 per day for his services. The
county refused to pay the bill, and the physician's appeal eventually reached
the Wisconsin Supreme Court. The supreme court ruled that there was no
distinction between ordinary and expert testimony, and the physician was not
entitled to any payment other than the statutory $1.50 per day that was in
effect at the time [5]:
The duty of every witness is to attend [the trial] as long as commanded and to testify to all material facts within his knowledge. This is a duty resting on all members of the community as such to aid the courts in the administration of justice. This is not seriously controverted by [the physician] in its application to what he calls ordinary witnesses testifying to ordinary facts, but the physician contends that when a physician is called on to give expert testimony his services are of a different character and cannot be demanded without compensation. The word "expert" in this connection is somewhat loose and uncertain. Much of the testimony of a so-called expert is in no wise different in character from that of any other witness. He may be called on to testify to that which he sees, hears, or otherwise discovers by the use of his senses.... A skilled physician discovers facts by the use of sight, hearing, or feeling, which another man might not. But this distinction is one of degree merely and not of kind. All men differ in their ability to observe accurately and in the certainty of knowledge which they derive from such observation...
There can be no doubt that every man owes a duty to attend and testify to the material facts that he knows notwithstanding the knowledge thereof may be due either to his learning or his expert faculties. Any attempt to draw a line between the exceptionally stupid and non-observant person and others who, by greater alertness, training, or skill and observation may acquire more knowledge, is impractical and irrational. The educated and intelligent owe the same duty of aid to the courts up to a limit of their ability as does the less competent man—the man whose services are worth $50 per day and he whose time is worth but $2.
The more difficult field is entered when we approach the question of calling on men of exceptional experience and qualifications to give their opinion as the result either of facts which they observe, or from a hypothetical statement of facts. This is the real field of expert evidence. It is there that the expert can testify and the nonexpert cannot.
[We believe] that the expert, be he mechanic, physician, engineer, or chemist, must obey the subpoena of the court and must testify to such facts as are within his knowledge, whether these facts may have required professional learning, study, or skill to ascertain them or not. If, when placed on the witness stand, he has such knowledge, he must testify to it.
Although it would take 90 years for the Wisconsin Supreme Court to modify its stance regarding whether expert witnesses could be forced to testify against their will [6], courts in other states adopted contrary positions much sooner. The New Jersey Supreme Court addressed the issue in 1934. A physician who had cared for a woman was called to testify in court as to whether there had been any evidence of bruises on her body that led him to believe that the woman had been subjected to physical mistreatment. The physician at first refused to attend a deposition, explaining that he worked in a hospital and "his time was not his own." Later, the physician was subpoenaed by the woman's family. The physician then responded that he would testify only if the family would "compensate him for his time and pay him the amount that the doctor might receive for a gallbladder or appendicitis operation." The family agreed, the physician testified at trial, and later sent his bill to the family for payment. The family refused to pay the physician. The trial court later ruled that the family had to pay the physician his fee, and the family appealed. The New Jersey Supreme Court affirmed that the physician's fee had to be paid [7]:
The attendance and testimony of the physician were sought from him as an expert witness giving not alone facts of his observation of the wife, but expressing his professional judgment as to the condition he found and its cause.... All knowledge which one has of the actual facts of a litigation, whether the witnesses to those facts be professional or lay, is available and such witnesses thereof amenable to the subpoena and compellable to give evidence of such facts. On the other hand, when the experience, training, and skill acquired by years of study and practice in a given profession exists, such knowledge and skill are not the property of litigants. It belongs to the professional man in his chosen profession.... Experts in many lines are found essential to the determination of truth, and without them justice would frequently be defeated.... Such testimony involves long and tedious preparation, and the giving of the results of training and experience. It would be unjust and without legal justification to withhold payment therefor.... An expert witness cannot be compelled to give testimony...and it is the right of such person to contract for and receive proper and adequate compensation therefor.
The distinction between testifying as an ordinary witness and as an expert witness was clarified in a case decided by an appellate court in California in 1959. A woman filed a medical malpractice lawsuit against a physician for his failure to take radiographs of her hip after she had fallen. Before the trial, the plaintiff personally requested nine physicians, all members of the Los Angeles County Medial Association, to testify on her behalf as expert medical witnesses. All nine refused, three saying that the reason for their refusal was that their malpractice insurance would be canceled and their membership in the Los Angeles County Medical Association jeopardized if they were to testify. Another physician allegedly said that "The practice of doctors appearing for plaintiffs is frowned on," and still another said "You had a pretty rough time, but I could not testify against another doctor." Although the appellate court's decision dealt with other issues as well, its ruling on the specific obligation of physicians to testify is noteworthy [8]:
We are faced with the question of whether a doctor, who has no relationship with a person growing out of contract to examine or treat, has a duty to enter into an agreement to render services as a medical expert merely on request. We hold that he does not. Even the Hippocratic Oath, by which every doctor is morally bound, assumes a preexisting relationship of patient and physician, which relationship in its inception is basically contractual and wholly voluntary. Since there is no established public policy and no legal obligation compelling him to engage in practice, accept professional employment, or render medical services to anyone who seeks to engage him, we conclude that there is no duty on a doctor's part to agree to serve as an expert witness for one with whom he has no preexisting contractual relationship.
In so holding we do not question the well-established rule that a doctor who has treated or examined a patient may be compelled to testify for him as an ordinary witness and answer pertinent questions concerning facts relating to his condition, knowledge of which he acquired through his examination and treatment, even though he discovered them by reason of his special or expert training.
Two other state courts ruled similarly. The first occurred in Florida, where a woman who had filed a malpractice suit alleging that she had undergone surgery without her first giving informed consent was prevented by the trial judge from compelling a physician to testify as an expert witness on her behalf. The physician had filed an affidavit that he had not treated the patient, had no knowledge of the facts, and therefore refused to testify. The Florida Appellate Court upheld the trial judge's decision to excuse the physician from testifying as an "involuntary expert" [9].
The second ruling involved a federal court in Texas in a case that was highly publicized at the time. Haskell Karp, a 47-year-old-man who had lived with long-standing debilitating heart disease, traveled from his home in Chicago to Houston, TX, to undergo cardiac surgery performed by the famed heart surgeon, Dr. Denton Cooley. Before surgery Cooley obtained informed consent from the Karp family that gave Cooley the option to implant an experimental artificial heart if, during the operation, it was his best judgment to do so. The heart was implanted, but Karp died 4 days later. The family filed a medical malpractice lawsuit against Cooley, alleging that he had failed to obtain appropriate informed consent. During the discovery process, the plaintiff subpoenaed the equally famed heart surgeon, Dr. Michael DeBakey, to testify as an expert witness for the plaintiff, inasmuch as DeBakey had previously publicly criticized Cooley for using the unproven artificial heart. DeBakey was served with a subpoena and was paid a $20 ordinary witness fee. On the appointed day he appeared in court, returned the $20, and stated that he would refuse "to express any medical opinion concerning the treatment of Mr. Karp" or the mechanical heart inserted by Cooley. After due deliberation, the federal judge ruled that DeBakey could not be compelled to testify [10].
In the early 1980s, two other state supreme courts chimed in with their opinions regarding whether an unwilling expert witness could be relieved from providing opinion testimony. In Iowa, a widow whose husband died after a bariatric gastric bypass surgical procedure sued his physicians for malpractice. The director of the National Bariatric Surgery Registry at the University of Iowa Hospitals, a surgeon, was called to testify regarding the factual information contained in the registry and to give his expert opinion regarding the medical care received by the decedent. At his deposition the surgeon answered all questions involving factual information but repeatedly refused to answer any questions related to his expert knowledge. The trial judge ordered the doctor to testify, stating that "Expert testimony is relevant to the issues in the underlying malpractice action and expert witnesses do not enjoy any testimonial privilege in Iowa." The surgeon's appeal reached the Iowa Supreme Court, which in a split decision ruled that the trial judge had erred [11].
In its written decision the court pointed out [11] that
The duty to testify arises from the need of our judicial system to have access to all relevant information in ascertaining the truth.... On the other hand...a litigant should not have unlimited power to compel expert testimony.
The court concluded that because in this case other physicians in the state were qualified to render expert opinion, the plaintiff did not demonstrate a necessity for the surgeon's expert testimony.
Two justices, however, rendered an interesting and thought-provoking dissent [11]:
There is no rational basis for applying different rules to witnesses furnishing "scientific" as opposed to "observed" facts. One is the product of learning and experience, the other of direct perception, but, if the whole purpose of witness evidence is to assist the fact trier, what is the difference?.... The duty to give testimony is not owed to the litigants or the lawyers, or even the courts, but to the community, or to society as a whole. The whole life of the community, the regularity and continuity of its relations, depends on the coming of the witness.... All society, potentially, is involved in each individual case. The vital process of justice must continue unceasingly.... Our duty to bear testimony runs not to the parties in the present case, but to the community at large and forever.
Expert witnesses may be compelled to testify the same as any other. When an expert is required to answer a hypothetical question, which involves a special knowledge peculiar to his calling, he is merely required to do what every good citizen is required to do...in promotion of the public good. The expert in possession of "scientific" facts should be treated as any other fact witness.... Reliance on whether the proposed evidence is "fact" or "opinion" is not realistic, as these terms themselves escape workable definition.
The Expert Who Possesses Unique Knowledge
Although it appears that most courts will not compel individuals to testify
as expert witnesses against their will, there are exceptions, as illustrated
in the following three cases. In the first, an antitrust proceeding involving
IBM, the U.S. government subpoenaed two persons who had expert knowledge of
the computer industry. The government offered to pay both experts for their
services, but the experts refused to testify, one claiming that "The
government is seeking the very core of my expertise which I do not wish to
provide and which I consider to be a proprietary asset available solely to my
employer or to those for whom I wish to work." A federal judge upheld
the government's right to compel testimony, however, and a federal appeals
court affirmed [12]:
The giving of testimony may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be begrudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities and become a hermit. He who will live by society must let society live by him, when it requires to.
A federal court in Michigan ruled similarly in the second lawsuit, this one involving the Jeep Corporation. A professor and researcher at the Highway Safety Institute of the University of Michigan was subpoenaed to testify about a study he had conducted that claimed that certain utility vehicles, particularly the Jeep, experienced a disproportionately high rollover rate in accidents. The Jeep Corporation subpoenaed the researcher to testify, and he refused. The research professor based his refusal on the fact that he was not a party to the lawsuit, had an absolute right not to be compelled to testify as an unwilling expert, had a First Amendment right that protected him from testifying against his will, and compliance with the subpoena to testify would be "extremely burdensome" and would "have a chilling effect on researchers, scientists, and educators." The federal judge rejected the argument and ordered the researcher to testify, but added that he was entitled to a fee for doing so [13]:
The professor has it all wrong. The administration of justice requires testimony of all persons.... The Court does not believe that compelling the professor to testify violates any First Amendment rights.... The possibility of being subpoenaed to testify exists for everyone. At any time a person can see something or hear something that will cause him or her to be subpoenaed to testify. Every person, within limits, is subject to a subpoena to tell about or produce information about what he or she saw or heard.
The professor claims that to require him to be available in every lawsuit would create an extraordinary hardship on him. Every person is burdened by having to disclose knowledge he acquires.... A person who sees an auto accident cannot refuse to testify because it burdens him. A person who witnesses a will cannot refuse to testify. All are burdens, yet some are burdened more than others.
The professor is entitled to a reasonable fee for testifying. His fee may include not only a professional fee and the cost of supplying the documents and remuneration for the inconvenience, but also could include in the appropriate case a charge for a portion of the expenses of the original research. Jeep Corporation is not entitled to have the benefits of the professor's research without advancing a reasonable fee.
The third case, adjudicated by a federal appeals court in Chicago, dealt with the pharmaceutical industry. Two women filed a lawsuit against the E. R. Squibb and Sons Company, alleging that they had each developed uterine carcinoma caused by in utero exposure to the drug diethylstilbestrol (DES). At Squibb's request, the court issued subpoenas for production of every document contained in a Registry for Hormonal Transplacental Carcinogenesis maintained at the University of Chicago, along with the personal testimony of the registry's custodian. Dr. Arthur Herbst, custodian of the registry's records and also chair of the University of Chicago's Obstetrics-Gynecology Department, refused to comply, claiming that the registry data were privileged and confidential. A federal district judge ordered Dr. Herbst to produce the records but upheld his refusal to testify. Squibb appealed the case.
In its written decision, the U.S. Court of Appeals pointed out that when faced with a party's refusal to comply with a subpoena, it must balance the need of the party seeking disclosure with that of the party required to make the disclosure. The court acknowledged Dr. Herbst's argument that compliance with the subpoena would literally destroy the registry if it would have the effect of piercing the registry's promised confidentiality. The court stated [14]:
Indisputably, there is a vital public interest in promoting research of the type the Registry carries out. We agree that the Registry files may enjoy a qualified privilege and are not to be pried into unnecessarily; however, such privileges are not absolute. They must yield if to enforce them would produce a miscarriage of justice.... Squibb argues that without the sought-after information, it suffers hardship because it is unable to adequately defend itself at trial.... Certainly, Squibb is entitled to cross-examine plaintiffs' experts on the data underlying their opinions regarding DES. Cross-examination is a fundamental right that a Court should abridge only to curb abuse....
Although Squibb has no right to all the Registry data it calls for...Squibb is still entitled to some discovery.... Probably there are many Americans who find drug companies in general to be objects they love to hate. This being so, it is the special responsibility of courts to see to it that cases against them at least are fairly presented and defense not unduly hobbled.
The court concluded by ordering the district federal judge to negotiate privately with the opposing parties to reach an agreement regarding Dr. Herbst's testimony and the material that should be disclosed and the material that must be kept confidential—an agreement that "allows Squibb the least necessary amount of information to avoid a miscarriage of justice without doing needless harm to Dr. Herbst or his Registry."
Must Expert Witnesses Testify?: The Latest Judicial Word
The question as to what degree, if any, a physician can be compelled to
testify as an expert witness was revisited by the Wisconsin Supreme Court in
1999. A woman went into labor and delivered by cesarean section a baby born
with severe brain damage. The family filed a malpractice suit against the
treating obstetrician, and during the discovery period subpoenaed for
deposition testimony from another obstetrician who had provided limited
prenatal care to the patient early in her pregnancy. The second obstetrician,
who was not a defendant in the malpractice case, and who had not been present
at the time of the patient's delivery, reluctantly appeared at the deposition.
At the deposition the plaintiff's attorney asked the obstetrician whether a
"gush of blood" was abnormal during a pregnancy. On the advice of
his own attorney, the obstetrician refused to answer the question. The
plaintiff's attorney took the matter to the local trial court judge, who
ordered the obstetrician to answer the question, and furthermore, imposed
sanctions of $2,335 against the obstetrician's attorney for his inappropriate
advice. An appellate court affirmed the trial court's ruling, but in a split
decision the Wisconsin Supreme Court reversed the stand it had taken 90 years
earlier [5] by rejecting the
decisions of both lower courts
[6]:
We hold that the question posed to the obstetrician required his expert opinion and as a nonparty physician he had the legal privilege to refuse to answer it. His attorney was substantially justified in directing him not to answer it.
A question asks for expert testimony if it requires scientific, technical, or specialized knowledge, which is not within the range of ordinary training or intelligence. There is no doubt that the question posed called for an expert opinion. Whether a gush of blood in a person at term pregnancy is normal or abnormal can only be answered in a meaningful and relevant way by a trained physician. What is normal? What is abnormal? Certainly a layperson medically un-trained and uneducated is in no position to answer such a question with anything other than a speculative guess.
The appropriate scope of expert privilege requires a balance between the right of expert witnesses to be free from testifying against their will and the needs of the courts and litigants for testimony. A person who has expended resources to attain specialized knowledge should not be forced to part with that knowledge on demand absent compelling circumstances. On the other hand, the general maxim that everyone has a right to every person's evidence is premised on the need of the judicial system to have access to all information needed to reach the truth. The cornerstone of expert testimony is the need for such testimony to assist the trier of fact.
The latest decision of any state appeals court regarding the issue of whether a physician can be compelled to testify as an expert witness, rendered once again by the Wisconsin Supreme Court, in March 2004 [15], received national publicity [16]. A woman diagnosed as having an ovarian cyst underwent an oophorectomy. After complaining of pelvic pain after the operation, the patient then underwent a hysterectomy. Still suffering from pain and depression because of her now-inability to conceive additional children, she consulted a second gynecologist for an additional opinion. The second gynecologist told the patient that she had undergone both procedures unnecessarily, and that a simple ovarian cystectomy would have been sufficient. The woman later sued the gynecologist who had performed the two operations, but her attorney was unable to find an expert witness to testify on her behalf.
Just before the expiration of the discovery period, the plaintiff named as its expert witness the gynecologist who had given the second opinion. The gynecologist immediately wrote a letter to the judge, saying that he did not wish to be a witness in this case but would agree to write a letter about his opinion to the attorney for the plaintiff. In the meantime the attorney representing the defendant gynecologist moved for dismissal of the lawsuit because the plaintiff had not found a willing gynecology expert witness. The judge at that point ruled that the second gynecologist had to render expert testimony because of a "compelling" reason to do so: the potential dismissal of the plaintiff's lawsuit, which would be too "harsh" a sanction. The consulting gynecologist appealed the judge's decision to the appellate court, which in a split decision, affirmed the trial court's ruling. The second gynecologist then took the appeal to the Wisconsin Supreme Court, which reversed the decisions of both lower courts and ruled that the gynecologist could not be compelled to testify [15]:
In general, the public has a right to every person's evidence at trial. At its core, the adversary system is based on the proposition that an examination of all of the persons possessing relevant information, which will lead to the discovery of all the relevant facts, will produce a just result. Nevertheless, this fundamental legal principal is tempered by constitutional, common law, or statutory privileges....
An expert witness has the privilege to refuse to testify if he or she is called by a litigant. Although we recognized that a person who has specialized knowledge in a certain area should not be forced to testify, we noted that, in certain circumstances, an expert witness's testimony could be uniquely necessary.... [However], simply because the gynecologist was the patient's treating physician, it does not necessarily follow that his expert opinion is unique or irreplaceable and must be required. Nevertheless we conclude that a treating physician may still be required to testify regarding his or her observations relating to the care or treatment provided to his or her patient, as such compulsion is considerably different from forcing a physician to testify as to the standard of care and treatment provided by another physician.
The court concluded:
The determination as to whether compelling circumstances exist, or unique or irreplaceable testimony is sought, is left to the discretion of the circuit court.... A person who has asserted his or her privilege not to testify and offer expert opinion testimony can be required to give such expert testimony only if all of the following factors are present: (1) there are compelling circumstances present, (2) the party seeking the testimony has presented a plan for reasonable compensation of the expert, and (3) the expert will not be required to do additional preparation for the testimony. [The privilege] does not apply to observations made by a person's treating physician relating to the care or treatment that he or she provided to the patient, but rather applies to expert opinion testimony from such a physician as to the standard of care and treatment provided by another physician.... The compelling circumstances determination should focus on whether there is unique or irreplaceable opinion testimony sought from an expert, not on the procedural aspects of the case.
Summary and Conclusion
In much of civil litigation, expert witnesses from various professions and walks of life are called on to educate jurors and judges about matters in which laypersons are not ordinarily knowledgeable. In medical malpractice litigation, with rare exception, physician expert witnesses are called on to educate jurors and judges about the existing standard of medical care in the case being tried and whether the defendant physician in the case did or did not breach that standard of care. Radiologists, not unlike physicians in other specialties, are frequently called on by both plaintiffs' and defense attorneys to testify at discovery depositions or trial as either a fact witness or an expert witness. As a fact witness, the radiologist may be subpoenaed to appear and testify regarding his or her knowledge of facts concerning the matter being tried, such as what the radiologist may have seen, heard, done, reported, or discovered as a result of his or her involvement in the care of the patient. It is clear from this article that under federal and state statutory and common law, radiologists are required to comply with such subpoenas, can be held in contempt of court if they fail to do so, and may be required to accept as full payment a nominal state-legislated fee.
The more common circumstance in which radiologists are called on to testify is by request of either a plaintiff's or defense attorney that they undertake the role of an expert witness. Radiologists are free to either accede to or reject these requests. Witness fees in these cases are negotiated by the attorney and radiologist.
Rarely, in certain situations such as those discussed in this article, a radiologist will be called on to testify as an expert witness against his or her will. Does the radiologist have to comply with such a demand?
Statutes and common law among the various states differ in their answer to this question [17]. As a general statement, courts will not compel a radiologist to testify as an expert witness if the radiologist chooses not to do so. In certain states, however, courts have held that if there is a "compelling" need for the testimony, the court may require the testimony. In three of the cases described in this article, a computer expert in one, an expert in automobile safety in another, and a physician researcher in the third, experts were all compelled by courts to testify, inasmuch as they possessed "unique" knowledge that no other witnesses possessed. None of the cases that I have uncovered involved a radiologist who has refused to testify, but in those cases involving nonradiologist treating physicians, the courts have granted the physicians the privilege of exercising their right to refuse to testify.
Radiologists should be admonished that the courts in many of the 50 United States have not had this issue brought before them, and thus have yet to render a decision regarding whether a physician can be compelled to testify as an expert witness [17]. Furthermore, even those state courts that have already taken a position on the subject could reverse or otherwise modify their position in the future. Thus, radiologists who are subpoenaed or otherwise called on to testify as an expert witness against their will should consult with an attorney to determine an appropriate course of action.
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