The expert witness in medical malpractice litigation

Black Robes and White Coats: Daubert Standard and Medical and Legal Considerations for Medical Expert Witnesses

Expert testimony can play a pivotal role in a legal case involving a medical issue, but it is crucial that this testimony be scientifically sound. In the United States, the Frye Standard demanded that such expert medical testimony be "generally accepted," but it has been superseded by the more demanding Daubert Standard. Under Daubert, judges became "gatekeepers" as to what scientific material was admissible in court and what might be dismissed as junk science. While a vast improvement over Frye, the Daubert Standard still faces its own problems. Judges usually lack scientific and medical expertise and sometimes have to do their own medical research to be able to evaluate the experts and their testimony. Expert witnesses can be subjected to an adversarial Daubert challenge, even during trial, to establish their credentials and the evidence they are reporting. About half of all judges have had no formal education in handling scientific evidence, but 91% felt comfortable in their gatekeeper role. Considerations for expert witnesses include training or coaching, familiarity with the entire case and courtroom procedures, and an ability to not just know the evidence but to be able to communicate it effectively to a lay audience (jury). Some countries have pioneered a concurrent testimony approach in complex cases, whereby experts argue the evidence of the case under oath before a judge in advance of the trial to determine where there are points of agreement and where the main areas of contention reside. This process, colorfully called "hot tubbing," is aimed at a more conciliatory approach to reaching compromises. Nevertheless, bias still can result even in hot-tubbing cases, and more research is needed to better understand the nature of jury bias and how it can affect jury decisions in complex medical cases.

Review of Malpractice Litigation in the Diagnosis and Treatment of Venous & Lymphatic Disease

OBJECTIVES

Malpractice claims involving nonthrombotic venous and lymphatic diseases and interventions have not been previously reported. We investigated common reasons for litigation, medical specialties involved, patient injuries, and case outcomes in malpractice litigation involving venous and lymphatic disease.

METHODS

Litigation cases entered into the Westlaw database from June 8th, 1984 to February 15th, 2018 were analyzed. Search terms included relevant words and phrases related to nonthrombotic venous, thoracic outlet syndrome and lymphatic disease and treatment. Data on physician specialty, malpractice claims, patient injuries jury outcomes, amount awarded to the plaintiff, and jury fees were collected and compared for each category.

RESULTS

A total of 144 cases were identified. 41 cases involved varicose veins, 11 spider veins, 35 thoracic outlet syndrome (TOS), 17 other venous diseases, and 40 lymphatic disease. Physician defendants were frequently vascular surgeons (23%) and general surgeons (15%). The majority of litigation claims involved "post-procedure complication" (77%), "lack of informed consent" (25%), "failure to diagnose & treat" (15%), and "intraoperative complications" (13%). The most common injuries were skin damage (27.8%), nerve damage (25%), and lymphedema (24%). Patient death occurred in 6% of cases. Out of venous malpractice cases with post-procedure complications, stab phlebectomy (27%) was the most common intervention followed by foam sclerotherapy (21%), rib resection (21%), laser spider vein removal (5%), and EVLT (3%). Of varicose vein cases, 15% included deep vein thrombosis or pulmonary embolism as post-procedure complications. In TOS rib resections, 65% of cases referenced nerve damage and 12% involved arterial injury. For lymphatic disease cases, general surgeons were frequently identified defendants (25%). Lymphedema (93%) and lymphangitis (7%) occurred as post-procedure complications after breast, gynecologic, orthopedic, and radiation procedures. A majority of complications occurred after breast cases (40%). Verdicts overall ruled in favor of the defendant in 71% (102/144) of cases and the plaintiff in 20% (29/144) of cases. Out of cases ruled in favor of the plaintiff, 31% were lymphatics, 24% varicose veins, and 24% TOS cases. Only 8% (12/144) of cases were settled and one outcome was unknown. The mean award was $820,193 (SD $1,226,008, Range $12,853 - $6,500,000).

CONCLUSIONS

The majority of venous and lymphatic litigation cases involve claims of post-procedure complications. Venous complications occurred after open and endovascular treatment of varicose veins, spider vein treatment, and surgical management of TOS. Lymphedema occurred after breast, oncology, and orthopedic procedures. These cases reflect opportunities for intervention to help potentially prevent litigation.

Characteristics of Radiologists Serving as Medical Malpractice Expert Witnesses for Defense Versus Plaintiff

PURPOSE

Previous studies have reported higher qualification characteristics for anesthesiologists, neurosurgeons, orthopedic surgeons, and otolaryngologists serving as defense (versus plaintiff) medical malpractice expert witnesses. We assessed such characteristics for radiologist expert witnesses.

METHODS

Using the Westlaw legal research database, we identified radiologists serving as experts in all indexed medical malpractice cases between 2010 and 2019. Online databases were used to identify years of practice experience and scholarly bibliometrics. Using Medicare claims, individual radiologist practice types and mixes were ascertained. Radiologists testifying at least once each for defense and plaintiff were excluded from our defense-only versus plaintiff-only comparative analysis.

RESULTS

Initial Boolean searches yielded 1,042 potential cases; subsequent manual review identified 179 radiologists testifying in 231 lawsuits: 143 testified in one case (58 defense, 85 plaintiff) and 36 testified in multiple cases (10 defense-only, 14 plaintiff-only, 12 both). The 68 defense-only experts had fewer years of practice experience than the 99 plaintiff-only experts (28.3 versus 31.8 years, P = .02), but the two groups were otherwise similar in both practice type (44.6% versus 54.9% academic, P = .62) and mix (63.8% versus 65.8% practiced as subspecialists, P = .37) and as well as numbers of publications (60.5 versus 62.8, P = .86), citations (1,994.1 versus 2,309.2, P = .56), and h-indices (17.2 versus 16.8, P = .89).

CONCLUSIONS

In contrast to other specialists, radiologists serving as medical malpractice expert witnesses for defense and plaintiff display similar qualifications across various characteristics. Published practice parameter guidelines and experts' ability to blindly review archived original images might together explain this interspecialty discordance.

Malpractice Litigation in Plastic Surgery: Can We Identify Patterns?

BACKGROUND

Malpractice litigation has a significant impact on healthcare costs and important professional implications for healthcare providers.

OBJECTIVES

The authors sought to comprehensively characterize the litigation landscape in plastic surgery across its different subspecialties.

METHODS

The authors utilized the Westlaw legal database to conduct a comprehensive search of malpractice cases in the United States in the following categories: cosmetic, reconstructive, hand, craniofacial, and gender affirmation surgery. They conducted both a Boolean and a natural language search to identify cases in which a plastic surgeon was the defendant. Data were analyzed employing descriptive statistics, logistic regression, and relative risk calculations.

RESULTS

In total, 165 cases were included. Most surgeons accused of malpractice worked in a private setting (148 [90%]). Among the 22 (13%) cases that contained information on board certification status, most surgeons were board certified (17 [77%]). Resident involvement was mentioned in only 5 (3%) cases. The majority of cases were successfully defended by surgeons (98 [60%] vs 65 [40%]), particularly in craniofacial surgery (risk ratio: 1.54; P = 0.03; 95% CI: 1.03-2.3). Surgeons who successfully defended a case were more likely to benefit from summary judgment (P = 0.005).

CONCLUSIONS

Malpractice litigation is commonplace in medical practice, and no specialty is spared. Legal outcomes were in favor of plastic surgeons in the majority of cases, particularly those that proceeded to summary judgment. Surgeons can avoid litigation by maintaining detailed office and surgical notes, always obtaining informed consent, adequately following and monitoring patients after surgery, and ensuring compliance by communicating frequently and effectively.

The evaluation of medical malpractice claims: Creating a Standard Approach Model Using the Delphi Method

Complaints about alleged medical malpractice have increased over time in Turkey, as well as other countries around the world. And it is often the subject of debate in health law and medical law. It can be seen that discussions are underway on "standard of care" which is highlighted in the finalization of claims for medical malpractice. In this case, the expert opinion offered to be the key point for the cases. In the expert opinion, there seems to be differences in approach and procedure. However, the period of determination of whether health professionals provide the expected minimum standard of care needs to be analyzed in a standard way. In addition to standard, objective and scientific evaluation of the evidence of liability for the medical malpractice claims by the experts, it is aimed to create an algorithm that will facilitate the evaluation by the judicial authorities. The aim of this research is to provide minimum common denominator which will be the standard approach model for the experts in the evaluation of medical malpractice claims. The Delphi method was used as a tool for the panelists to express their opinions freely without being under the influence of each other and to reveal different ideas. The research conducted with 11 panelists consist of forensic medicine experts, clinicians, and a lawyer between January 2017 and September 2017. This research will impact the forensic science and law community by serving the evaluations of the experts in medical malpractice claims whether evaluations are based on methodological and logical considerations and the scientific validity of the evaluations is objective or not.

New Rules on Patient's Safety and Professional Liability for the Italian Health Service

BACKGROUND

The phenomenon of clinical negligence claims has rapidly spread to United States, Canada and Europe assuming the dimensions and the severity of a pandemia. Consequently, the issues related to medical malpractice need to be studied from a transnational perspective since they raise similar problems in different legal systems.

METHODS

Over the last two decades, medical liability has become a prominent issue in healthcare policy and a major concern for healthcare economics in Italy. The failures of the liability system and the high cost of healthcare have led to considerable legislative activity concerning medical malpractice liability, and a law was enacted in 2012 (Law no. 189/2012), known as the "Balduzzi Law".

RESULTS

The law tackles the mounting concern over litigation related to medical malpractice and calls for Italian physicians to follow guidelines. Briefly, the law provided for the decriminalisation of simple negligence of a physician on condition that he/she followed the guidelines and "good medical practice" while carrying out his/her duties, whilst the obligation for compensation, as defined by the Italian Civil Code, remained. Judges had to consider that the physician followed the provisions of the guidelines but nevertheless caused injury to the patient.

CONCLUSION

However, since the emission of the law, thorny questions remain which have attracted renewed interest and criticism both in the Italian courts and legal literature. Since then, several bills have been presented on the topic and these have been merged into a single text entitled "Regulations for healthcare and patient safety and for the professional responsibility of healthcare providers".

Medical Malpractice Primer for Practicing Interventional Radiologists

Medical professional liability (MPL), also commonly referred to as medical malpractice, is a costly issue in health care today, accounting for roughly 2.4% of total health care expenditure in the United States. Almost all physicians currently in clinical practice will either be subject to a lawsuit themselves or work with someone who has. Given a lack of formal structured education about MPL in medicine for trainees, this review aims to define and discuss the relevant concepts in MPL as a reference for early career interventionalists to understand the current medicolegal environment and learn best practices to avoid litigation.

Outcomes Knowledge May Bias Radiological Decision-making

RATIONALE AND OBJECTIVES

This research investigates whether an expectation of abnormality and prior knowledge might potentially influence the decision-making of radiologists, and discusses the implications for radiological expert witness testimony.

MATERIALS AND METHODS

This study was a web-based perception experiment. A total of 12 board-certified radiologists were asked to interpret 40 adult chest images (20 abnormal) twice and decide if pulmonary lesions were present. Before the first viewing, a general clinical history was given for all images: cough for 3+ weeks. This was called the "defendants read." Two weeks later, the radiologists were asked to view the same dataset (unaware that the dataset was unchanged). For this reading, the radiologists were given the following information for all images: "These images were reported normal but all of these patients have a lung tumour diagnosed on a subsequent radiograph 6 months later." They were also given the lobar location of the newly diagnosed tumor. This was called the "expert witness read."

RESULTS

There was a significant difference in location-based sensitivity (W = -45, P = 0.02) between the two conditions with nodule detection increasing under the second condition. Specificity increased outside the lobe of interest (W = 727, P = < 0.0001) and decreased within the lobe of interest (W = -237, P = 0.03) significantly in the "expert witness" read. Case-based sensitivity and case-based specificity were unaffected.

CONCLUSIONS

This study showed evidence that increased clinical information affects the performance of radiologists. This effect may bias expert witnesses in radiological malpractice litigation.

Comparison of plaintiff and defendant expert witness qualification in malpractice litigation in neurological surgery

Object

Expert witnesses provide a valuable societal service, interpreting complex pieces of evidence that may be misunderstood by nonmedical laypersons. The role of medical expert witness testimony and the potential professional repercussions, however, have been controversial in the medical community. The objective of the present analysis was to characterize the expertise of neurological surgeons testifying as expert witnesses in malpractice litigation.

Methods

Malpractice litigation involving expert testimony from neurological surgeons was obtained using the WestlawNext legal database. Data pertaining to duration of a surgeon's practice, scholarly impact (as measured by the h index), practice setting, and the frequency with which a surgeon testifies were obtained for these expert witnesses from various online resources including the Scopus database, online medical facility and practice sites, and state medical licensing boards.

Results

Neurological surgeons testifying in 326 cases since 2008 averaged over 30 years of experience per person (34.5 years for plaintiff witnesses vs 33.2 for defense witnesses, p = 0.35). Defense witnesses had statistically higher scholarly impact than plaintiff witnesses (h index = 8.76 vs 5.46, p < 0.001). A greater proportion of defense witnesses were involved in academic practice (46.1% vs 24.4%, p < 0.001). Those testifying on behalf of plaintiffs were more likely to testify multiple times than those testifying on behalf of defendants (20.4% vs 12.6%).

Conclusions

Practitioners testifying for either side tend to be very experienced, while those testifying on behalf of defendants have significantly higher scholarly impact and are more likely to practice in an academic setting, potentially indicating a greater level of expertise. Experts for plaintiffs were more likely to testify multiple times. Surgical societies may need to clarify the necessary qualifications and ethical responsibilities of those who choose to testify.

Medicolegal information for the young traumatologist: better safe than sorry

Because every orthopaedic traumatologist will interact with the legal system during their career--either as a treating physician of a patient involved in legal action, an expert witness, or as a defendant in a lawsuit--a basic understanding of the legal process is paramount to successfully serve in these roles. Common truths and misperceptions about medicolegal risk, expectations of care and documentation in the trauma setting, and information about being deposed and giving expert testimony will be discussed.

Mammaplasties and medicolegal issues: 50 cases of litigation in aesthetic surgery of the breast

BACKGROUND

Aesthetic surgery procedures are increasing all over the world, and so are related medicolegal questions and litigation cases. Aesthetic mammaplasties represent a very important part of this field and consequently many cases of error appear. Most of these errors lead to litigation from which plastic surgeons rarely can be exonerated. The aim of this article was to evaluate different errors ascribed to the plastic surgeon, the rate of cases in which professional responsibility has been identified, and the type of guilt imputed.

METHODS

Each case is based on the evaluation of both documentation used by the judge and the relationships of two specialists involved in the assessment of the presumed error. In every case, problems complained about by the patient and the eventually related error of the surgeon were analyzed. Moreover, the eventual identification of professional responsibility, the quantified damage, and its possible reduction by another corrective operation were considered.

RESULTS

The cases studied (N=50) were divided into 34 cases of augmentation mammaplasty, 11 cases of reduction mammaplasty, and 5 cases of mastopexy. Most of the problems complained about by patients were in the preoperative and intraoperative phases. In only 10% of the cases was the informed consent contested and an expected reduction of the damage was individuated in less than half of cases.

CONCLUSIONS

The evaluation of aesthetic damage is a tricky question due to different aspects such as the psychological component or the frequent lack of adequate photographic documentation of the patient before the operation. Moreover, whenever possible reduction of the damage is proposed, the patient's willingness to undergo another operation, with all its related costs and benefits, must be considered.