Law & Medicine

Responsibility for delayed Dx cuts both ways

A 44-YEAR-OLD WOMAN went to a university medical clinic complaining of weight gain and fatigue. The clinic was staffed by residents supervised by clinical faculty. The resident who examined the woman found a 1.5-cm mobile mass in one of her breasts. After consultation with the supervising physician, a mammogram with ultrasound was ordered. The supervising physician didn’t see the patient, but signed off on the treatment plan.

The mammogram was performed 2 days later and the mass was evaluated as probably benign. The patient was advised to follow up in 6 months. A month later, a second resident consulted with the patient and told her that she could have a biopsy or follow her condition on her own. The patient decided against a biopsy.

Eight months later, the clinic sent a reminder to the patient to return for follow-up, which she did. At that time, the skin on her breast had the texture of orange rind and the mass had grown. Metastatic breast cancer was diagnosed. Aggressive treatment was recommended, but the patient opted for herbal and other homeopathic remedies.

The initial trial of the case ended in a defense verdict, which was appealed after the patient died. A second trial led to a verdict finding the supervising physician 99% at fault and the patient 1% at fault. The jury award was set aside by the trial court.

PLAINTIFF’S CLAIM Failure to diagnose breast cancer promptly constituted negligence. A needle biopsy was needed.

THE DEFENSE The follow-up plan was reasonable; the patient didn’t return for evaluation when her condition changed.

VERDICT $2.4 million verdict in the second trial, set aside by a Tennessee judge.

COMMENT Failure to appropriately diagnose breast cancer is a leading cause of medical malpractice. A persistent breast mass, no matter the mammographic findings, needs to be followed aggressively and appropriate evaluation and referral pursued.

Missed pulmonary embolism proves fatal

TWO FAINTING EPISODES caused a 41-year-old man to be transported to the emergency department (ED), where he was found to have decreased blood oxygenation, increased respiratory rate, and heart strain. The patient had hypertension and had recently taken 2 4-hour airplane trips.

An ED physician examined the man initially and admitted him to the hospital. About 12 hours after admission, an attending family physician saw the patient, but didn’t order any immediate testing. The patient subsequently died from a pulmonary embolism.

PLAINTIFFS’ CLAIM Prompt testing was needed to rule out pulmonary embolism.

THE DEFENSE Fainting isn’t a common sign of pulmonary embolism. A 4-hour plane ride usually isn’t sufficient to cause deep vein thrombosis.

VERDICT $975,000 New Jersey settlement.

COMMENT Although pulmonary embolism certainly has more classic presentations than this one, the combination of the patient’s history and clinical findings were of sufficient concern to warrant prompt evaluation.

Warfarin + a twisted back = bad outcome

A FALL DOWN A FLIGHT OF STAIRS in her home caused an 85-year-old woman to twist her back when she grabbed for the bannister (she caught herself before landing). She was taken to an emergency department, where the staff noted that she was taking warfarin; she was diagnosed with acute low back pain and strain. The patient continued to receive anticoagulation therapy.

Because the patient also had decreased sensation in her lower legs, a magnetic resonance imaging (MRI) scan of the lumbosacral spine was ordered. The wet read of the MRI reported degenerative joint disease at L4-5 and mild-to-moderate spinal stenosis at L1-2, L2-3, L3-4, and L4-5, with no other abnormalities. The radiologist who issued the formal report described similar findings.

The next morning, the patient complained of numbness in her legs. She couldn’t move either leg and needed help to turn in bed. By noon, she had minimal motor control of her legs and couldn’t stand.

The attending physician was notified, but didn’t assess the woman. When a nurse called the doctor to let her know that the physical therapist had concerns about the patient, the doctor said that she’d address the concerns the following morning.

A neurologist ultimately assessed the patient and reported that she had neurologic deficits in her legs that interfered with her ability to walk. The patient continues to have significantly impaired function in her legs.

PLAINTIFF’S CLAIM The radiologists failed to identify abnormal signal intensity on the MRI, which should have raised concerns about bleeding and prompted an immediate assessment. The patient’s warfarin therapy wasn’t managed properly.

THE DEFENSE Subdural bleeding in the spine is rare. The fall caused the neurologic impairment, which was unlikely to improve regardless of the timing of diagnosis or treatment. The proper orders were given based on the reported MRI results. Discontinuing warfarin posed a risk in light of the patient’s history of mini-strokes.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Although we could debate the cause of this patient’s disability, anyone on warfarin is at risk for occult bleeding and requires careful assessment after a fall or injury.

Colon cancer blamed on failure to screen

AFTER HER PHYSICIAN LEFT HIS PRACTICE, a woman started seeing another doctor in the practice almost exclusively. The second doctor never discussed or recommended colon cancer screening. Seven years later, at 66 years of age, the patient was diagnosed with stage IIB adenocarcinoma of the colon. She underwent surgery to remove part of the large intestine and required 6 months of chemotherapy.

PLAINTIFF’S CLAIM The doctor was negligent for failing to recommend colon cancer screening. The patient wouldn’t have developed cancer if she’d undergone screening.

THE DEFENSE A screening recommendation wasn’t required because the patient visited the doctor’s office only for acute-care issues.

VERDICT $357,130 Illinois verdict.

COMMENT Even patients who are casual users of our practices should receive clearly documented screening recommendations or requests to have a complete physical.

Quinolone leads to tendon damage in patient with known allergy

SINUSITIS PROMPTED A 35-YEAR-OLD WOMAN to visit an otolaryngologist. The physician prescribed moxifloxacin, despite the woman’s well-documented history of allergy to quinolone antibiotics.

After 2 doses of the drug, the patient developed a reaction marked by tendon damage in the hips. She suffered ongoing limited mobility, which affected her work and interfered with her ability to pursue her hobbies.

PLAINTIFF’S CLAIM The doctor was negligent in prescribing moxifloxacin.

THE DEFENSE Although moxifloxacin belongs to the quinolone antibiotic class, it has differences that make prescribing it a matter of judgment.

VERDICT $203,614 Kentucky verdict.

COMMENT Although we don’t know the exact nature of the patient’s “allergy” to quinolone antibiotics—we all know of cases in which allergy is defined as a bit of diarrhea or stomach upset. I have to wonder whether the decision-making process that led to using moxifloxacin (instead of another antibiotic) was documented clearly.

Responsibility for delayed Dx cuts both ways

A 44-YEAR-OLD WOMAN went to a university medical clinic complaining of weight gain and fatigue. The clinic was staffed by residents supervised by clinical faculty. The resident who examined the woman found a 1.5-cm mobile mass in one of her breasts. After consultation with the supervising physician, a mammogram with ultrasound was ordered. The supervising physician didn’t see the patient, but signed off on the treatment plan.

The mammogram was performed 2 days later and the mass was evaluated as probably benign. The patient was advised to follow up in 6 months. A month later, a second resident consulted with the patient and told her that she could have a biopsy or follow her condition on her own. The patient decided against a biopsy.

Eight months later, the clinic sent a reminder to the patient to return for follow-up, which she did. At that time, the skin on her breast had the texture of orange rind and the mass had grown. Metastatic breast cancer was diagnosed. Aggressive treatment was recommended, but the patient opted for herbal and other homeopathic remedies.

The initial trial of the case ended in a defense verdict, which was appealed after the patient died. A second trial led to a verdict finding the supervising physician 99% at fault and the patient 1% at fault. The jury award was set aside by the trial court.

PLAINTIFF’S CLAIM Failure to diagnose breast cancer promptly constituted negligence. A needle biopsy was needed.

THE DEFENSE The follow-up plan was reasonable; the patient didn’t return for evaluation when her condition changed.

VERDICT $2.4 million verdict in the second trial, set aside by a Tennessee judge.

COMMENT Failure to appropriately diagnose breast cancer is a leading cause of medical malpractice. A persistent breast mass, no matter the mammographic findings, needs to be followed aggressively and appropriate evaluation and referral pursued.

Missed pulmonary embolism proves fatal

TWO FAINTING EPISODES caused a 41-year-old man to be transported to the emergency department (ED), where he was found to have decreased blood oxygenation, increased respiratory rate, and heart strain. The patient had hypertension and had recently taken 2 4-hour airplane trips.

An ED physician examined the man initially and admitted him to the hospital. About 12 hours after admission, an attending family physician saw the patient, but didn’t order any immediate testing. The patient subsequently died from a pulmonary embolism.

PLAINTIFFS’ CLAIM Prompt testing was needed to rule out pulmonary embolism.

THE DEFENSE Fainting isn’t a common sign of pulmonary embolism. A 4-hour plane ride usually isn’t sufficient to cause deep vein thrombosis.

VERDICT $975,000 New Jersey settlement.

COMMENT Although pulmonary embolism certainly has more classic presentations than this one, the combination of the patient’s history and clinical findings were of sufficient concern to warrant prompt evaluation.

Warfarin + a twisted back = bad outcome

A FALL DOWN A FLIGHT OF STAIRS in her home caused an 85-year-old woman to twist her back when she grabbed for the bannister (she caught herself before landing). She was taken to an emergency department, where the staff noted that she was taking warfarin; she was diagnosed with acute low back pain and strain. The patient continued to receive anticoagulation therapy.

Because the patient also had decreased sensation in her lower legs, a magnetic resonance imaging (MRI) scan of the lumbosacral spine was ordered. The wet read of the MRI reported degenerative joint disease at L4-5 and mild-to-moderate spinal stenosis at L1-2, L2-3, L3-4, and L4-5, with no other abnormalities. The radiologist who issued the formal report described similar findings.

The next morning, the patient complained of numbness in her legs. She couldn’t move either leg and needed help to turn in bed. By noon, she had minimal motor control of her legs and couldn’t stand.

The attending physician was notified, but didn’t assess the woman. When a nurse called the doctor to let her know that the physical therapist had concerns about the patient, the doctor said that she’d address the concerns the following morning.

A neurologist ultimately assessed the patient and reported that she had neurologic deficits in her legs that interfered with her ability to walk. The patient continues to have significantly impaired function in her legs.

PLAINTIFF’S CLAIM The radiologists failed to identify abnormal signal intensity on the MRI, which should have raised concerns about bleeding and prompted an immediate assessment. The patient’s warfarin therapy wasn’t managed properly.

THE DEFENSE Subdural bleeding in the spine is rare. The fall caused the neurologic impairment, which was unlikely to improve regardless of the timing of diagnosis or treatment. The proper orders were given based on the reported MRI results. Discontinuing warfarin posed a risk in light of the patient’s history of mini-strokes.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Although we could debate the cause of this patient’s disability, anyone on warfarin is at risk for occult bleeding and requires careful assessment after a fall or injury.

Colon cancer blamed on failure to screen

AFTER HER PHYSICIAN LEFT HIS PRACTICE, a woman started seeing another doctor in the practice almost exclusively. The second doctor never discussed or recommended colon cancer screening. Seven years later, at 66 years of age, the patient was diagnosed with stage IIB adenocarcinoma of the colon. She underwent surgery to remove part of the large intestine and required 6 months of chemotherapy.

PLAINTIFF’S CLAIM The doctor was negligent for failing to recommend colon cancer screening. The patient wouldn’t have developed cancer if she’d undergone screening.

THE DEFENSE A screening recommendation wasn’t required because the patient visited the doctor’s office only for acute-care issues.

VERDICT $357,130 Illinois verdict.

COMMENT Even patients who are casual users of our practices should receive clearly documented screening recommendations or requests to have a complete physical.

Quinolone leads to tendon damage in patient with known allergy

SINUSITIS PROMPTED A 35-YEAR-OLD WOMAN to visit an otolaryngologist. The physician prescribed moxifloxacin, despite the woman’s well-documented history of allergy to quinolone antibiotics.

After 2 doses of the drug, the patient developed a reaction marked by tendon damage in the hips. She suffered ongoing limited mobility, which affected her work and interfered with her ability to pursue her hobbies.

PLAINTIFF’S CLAIM The doctor was negligent in prescribing moxifloxacin.

THE DEFENSE Although moxifloxacin belongs to the quinolone antibiotic class, it has differences that make prescribing it a matter of judgment.

VERDICT $203,614 Kentucky verdict.

COMMENT Although we don’t know the exact nature of the patient’s “allergy” to quinolone antibiotics—we all know of cases in which allergy is defined as a bit of diarrhea or stomach upset. I have to wonder whether the decision-making process that led to using moxifloxacin (instead of another antibiotic) was documented clearly.

Responsibility for delayed Dx cuts both ways

A 44-YEAR-OLD WOMAN went to a university medical clinic complaining of weight gain and fatigue. The clinic was staffed by residents supervised by clinical faculty. The resident who examined the woman found a 1.5-cm mobile mass in one of her breasts. After consultation with the supervising physician, a mammogram with ultrasound was ordered. The supervising physician didn’t see the patient, but signed off on the treatment plan.

The mammogram was performed 2 days later and the mass was evaluated as probably benign. The patient was advised to follow up in 6 months. A month later, a second resident consulted with the patient and told her that she could have a biopsy or follow her condition on her own. The patient decided against a biopsy.

Eight months later, the clinic sent a reminder to the patient to return for follow-up, which she did. At that time, the skin on her breast had the texture of orange rind and the mass had grown. Metastatic breast cancer was diagnosed. Aggressive treatment was recommended, but the patient opted for herbal and other homeopathic remedies.

The initial trial of the case ended in a defense verdict, which was appealed after the patient died. A second trial led to a verdict finding the supervising physician 99% at fault and the patient 1% at fault. The jury award was set aside by the trial court.

PLAINTIFF’S CLAIM Failure to diagnose breast cancer promptly constituted negligence. A needle biopsy was needed.

THE DEFENSE The follow-up plan was reasonable; the patient didn’t return for evaluation when her condition changed.

VERDICT $2.4 million verdict in the second trial, set aside by a Tennessee judge.

COMMENT Failure to appropriately diagnose breast cancer is a leading cause of medical malpractice. A persistent breast mass, no matter the mammographic findings, needs to be followed aggressively and appropriate evaluation and referral pursued.

Missed pulmonary embolism proves fatal

TWO FAINTING EPISODES caused a 41-year-old man to be transported to the emergency department (ED), where he was found to have decreased blood oxygenation, increased respiratory rate, and heart strain. The patient had hypertension and had recently taken 2 4-hour airplane trips.

An ED physician examined the man initially and admitted him to the hospital. About 12 hours after admission, an attending family physician saw the patient, but didn’t order any immediate testing. The patient subsequently died from a pulmonary embolism.

PLAINTIFFS’ CLAIM Prompt testing was needed to rule out pulmonary embolism.

THE DEFENSE Fainting isn’t a common sign of pulmonary embolism. A 4-hour plane ride usually isn’t sufficient to cause deep vein thrombosis.

VERDICT $975,000 New Jersey settlement.

COMMENT Although pulmonary embolism certainly has more classic presentations than this one, the combination of the patient’s history and clinical findings were of sufficient concern to warrant prompt evaluation.

Warfarin + a twisted back = bad outcome

A FALL DOWN A FLIGHT OF STAIRS in her home caused an 85-year-old woman to twist her back when she grabbed for the bannister (she caught herself before landing). She was taken to an emergency department, where the staff noted that she was taking warfarin; she was diagnosed with acute low back pain and strain. The patient continued to receive anticoagulation therapy.

Because the patient also had decreased sensation in her lower legs, a magnetic resonance imaging (MRI) scan of the lumbosacral spine was ordered. The wet read of the MRI reported degenerative joint disease at L4-5 and mild-to-moderate spinal stenosis at L1-2, L2-3, L3-4, and L4-5, with no other abnormalities. The radiologist who issued the formal report described similar findings.

The next morning, the patient complained of numbness in her legs. She couldn’t move either leg and needed help to turn in bed. By noon, she had minimal motor control of her legs and couldn’t stand.

The attending physician was notified, but didn’t assess the woman. When a nurse called the doctor to let her know that the physical therapist had concerns about the patient, the doctor said that she’d address the concerns the following morning.

A neurologist ultimately assessed the patient and reported that she had neurologic deficits in her legs that interfered with her ability to walk. The patient continues to have significantly impaired function in her legs.

PLAINTIFF’S CLAIM The radiologists failed to identify abnormal signal intensity on the MRI, which should have raised concerns about bleeding and prompted an immediate assessment. The patient’s warfarin therapy wasn’t managed properly.

THE DEFENSE Subdural bleeding in the spine is rare. The fall caused the neurologic impairment, which was unlikely to improve regardless of the timing of diagnosis or treatment. The proper orders were given based on the reported MRI results. Discontinuing warfarin posed a risk in light of the patient’s history of mini-strokes.

VERDICT $1.5 million Massachusetts settlement.

COMMENT Although we could debate the cause of this patient’s disability, anyone on warfarin is at risk for occult bleeding and requires careful assessment after a fall or injury.

Colon cancer blamed on failure to screen

AFTER HER PHYSICIAN LEFT HIS PRACTICE, a woman started seeing another doctor in the practice almost exclusively. The second doctor never discussed or recommended colon cancer screening. Seven years later, at 66 years of age, the patient was diagnosed with stage IIB adenocarcinoma of the colon. She underwent surgery to remove part of the large intestine and required 6 months of chemotherapy.

PLAINTIFF’S CLAIM The doctor was negligent for failing to recommend colon cancer screening. The patient wouldn’t have developed cancer if she’d undergone screening.

THE DEFENSE A screening recommendation wasn’t required because the patient visited the doctor’s office only for acute-care issues.

VERDICT $357,130 Illinois verdict.

COMMENT Even patients who are casual users of our practices should receive clearly documented screening recommendations or requests to have a complete physical.

Quinolone leads to tendon damage in patient with known allergy

SINUSITIS PROMPTED A 35-YEAR-OLD WOMAN to visit an otolaryngologist. The physician prescribed moxifloxacin, despite the woman’s well-documented history of allergy to quinolone antibiotics.

After 2 doses of the drug, the patient developed a reaction marked by tendon damage in the hips. She suffered ongoing limited mobility, which affected her work and interfered with her ability to pursue her hobbies.

PLAINTIFF’S CLAIM The doctor was negligent in prescribing moxifloxacin.

THE DEFENSE Although moxifloxacin belongs to the quinolone antibiotic class, it has differences that make prescribing it a matter of judgment.

VERDICT $203,614 Kentucky verdict.

COMMENT Although we don’t know the exact nature of the patient’s “allergy” to quinolone antibiotics—we all know of cases in which allergy is defined as a bit of diarrhea or stomach upset. I have to wonder whether the decision-making process that led to using moxifloxacin (instead of another antibiotic) was documented clearly.

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Patient underwent uneventful varicocelectomy and was warned not to get out of bed. However, instead of using the bedpan as instructed, he walked to the bathroom, fell off the toilet seat, and injured his groin. The doctor did not examine him until several days later and found a large scrotal hematoma. The patient eventually developed testicular atrophy. Expert testimony apportioned 40% of the damage to the fall, and 60% to the doctor's delay in diagnosis and evacuating the hematoma. In a lawsuit for medical malpractice, which of the following choices is best?

A. This is a case of contributory negligence.

B. This is a case of assumption of risk.

C. Damages are to be reduced by 40%.

D. A and B are correct.

E. A and C are correct.

Answer: E. To win a malpractice lawsuit, the plaintiff must prove, with a preponderance of evidence, the four elements of negligence: duty, breach, causation, and damages. However, the law allows for affirmative defenses that can defeat, in whole or in part, a malpractice action even if the evidence satisfies all four elements. One of these affirmative defenses is contributory negligence, which requires the claimant to be partly at fault. At common law, any degree of negligence on the part of the plaintiff constituted a complete defense. This was felt to be overly harsh to the victim who may have been only slightly careless, so the law gradually changed to where the amount of damages is proportionately reduced by the percentage of plaintiff's negligence.

This is called contributory or more accurately, comparative negligence, and many states have enacted statutes covering this defense, e.g., Florida's §768.819 (4) (a), Fla. Stat. (1993). In the above hypothetical case, the 40% negligent plaintiff will be able to recover only 60% damages. In some states, if the plaintiff is more than 50% negligent, that is, fault greater than the defendant's, then no recovery is allowed. In a few jurisdictions (five at last count), strict contributory rather than comparative negligence still remains the law.

Assumption of risk is a complete bar to recovery and requires both full knowledge of risk and manifest consent on the part of the claimant. The facts in this case are insufficient to sustain this defense. Assumption of risk is commonly invoked as a defense in sports injuries, but rarely in medical malpractice.

In order for the defense to successfully plead contributory negligence, there must be a showing that the plaintiff had acted without reasonable regard for his or her own safety. In a Florida case of thrombophlebitis that developed following a fracture, the patient omitted her physical therapy, failed to elevate her legs, continued smoking, and remained inactive in bed for several days, all against medical advice. The jury found the claimant 45% comparatively negligent, which was upheld on appeal.

However, the defense of contributory negligence is not always successful. In Weil v. Seltzer, the patient was treated for many years with steroids that his doctor represented to be antihistamines. He developed steroid complications, and died suddenly at age 54 years from a saddle block pulmonary embolus that contained bone marrow fragments, thought to have originated from steroid-induced osteoporotic bones. The court dismissed the defense of contributory negligence, as there was insufficient evidence to show that the patient knew he was taking steroids and could not have reasonably informed his other treating physicians of this fact.

In a case of missed diagnosis of popliteal artery laceration, a court refused to instruct the jury regarding contributory negligence where the patient did not receive specific instructions regarding an earlier return to the emergency room and it was questionable whether an earlier return would have made a difference. And in Gray v. Brock, the Missouri Court of Appeals reversed a lower court's judgment of 82% contributory negligence after finding no evidence that the plaintiff had actual knowledge that his diabetes was out of control or that it contributed to his death.

Contributory negligence, which speaks to plaintiff fault, should be differentiated from “loss of a chance,” where defendant's act or omission deprived plaintiff of an opportunity of avoiding or reducing resultant injury. The former is a defense argument, and the latter, a plaintiff argument. Contributory negligence translates into a proportionate reduction in damages. On the other hand, some jurisdictions require the underlying risk in “loss of a chance” cases to be over 50% to begin with, and/or may require the lost chance to itself increase the risk by greater than 50% before allowing any recovery.

Claimant's negligence must be a cause of, not merely incidental to, the sustained injury. For example, a negligent rider on a traxcavator who was injured after being struck from behind by the careless driver of a dumper truck was found to be contributorily negligent. However, the court pointed out that contributory negligence would not have been a defense had he been injured instead by an incidental stray shot from a negligent sportsman.

In a recent Tennessee case, a patient sustained a cardiac arrest because of negligent monitoring during a CT scan. His antecedent negligence stemmed from the fact that he had alcohol in his blood upon arrival at the hospital following a car accident. The state Supreme Court found the hospital 100% liable and disallowed the jury's assessment of 30% comparative fault, holding that “principles of comparative fault did not apply such as to allow fault to be assessed to patient, and thus jury should not have been allowed to consider patient's antecedent negligence in assessing fault.”

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Question: Ms. Holistica purchased Slim-Yu, an over-the-counter (OTC) herbal supplement advertised as a weight-loss agent. She asked her primary care doctor about its effectiveness and safety, and he said that it was “OK.” Two months later, Ms. Holistica developed jaundice, abnormal liver function tests, and liver failure. Which of the following is incorrect?:

Her doctor cannot be liable because he did not prescribe the supplement.

Her doctor may be liable because he had given his approval for its use.

Ms. Holistica should consider suing the drugstore for selling Slim-Yu.

Ms. Holistica should consider suing the manufacturer for a defective product.

No one is liable unless the plaintiff proves proximate causation.

Answer: A. All choices are true except A. To be sure, the doctor did not prescribe Slim-Yu, but he did give his “OK,” and the patient may have relied upon his approval. Just because it's an OTC preparation does not absolve the physician if he was providing medical advice in a professional capacity. Totally unregulated, a few of these OTC supplements can be expected to result in harmful effects. The injured party will naturally consider suing both the manufacturer and the drugstore for putting the item on the market. Ms. Holistica will still have to prove that the weight-loss agent proximately caused the injury, or else all defendants will escape liability.

Lack of informed consent is the usual basis for lawsuits against physicians who practice complementary and alternative medicine (CAM). In Charell v. Gonzalez, a cancer patient refused treatment by her oncologist and opted instead for “nutritional therapy” offered by another physician. Her cancer metastasized, leading to blindness and back problems. The patient alleged negligence and failure to warn of risks. The jury found the physician 51% liable for lack of informed consent and departure from standard of care, whereas the plaintiff was found to be 49% at fault for choosing to ignore the recommendations of her oncologists.

In Moore v. Baker, a patient attempted to sue her neurologist for failure to offer EDTA chelation therapy as an alternative to surgical treatment. The patient had undergone a carotid endarterectomy and during the recovery period, a blood clot developed, causing brain damage. She alleged that EDTA chelation therapy was as effective as surgery and was less risky. However, her suit failed, the court holding: “The evidence overwhelmingly suggests that the mainstream medical community does not recognize or accept EDTA therapy as an alternative to a carotid endarterectomy …”

CAM is not usually taught as tried and true therapy in medical schools, so the use of such “nontraditional” therapy may be equated with experimental, even substandard, care. One appellate judge has warned: “Currently, the law does not encourage medical doctors to stray from the pack (because) it is well-settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care …”

There are several legal defenses for a physician's integrating, utilizing, or supporting CAM therapies. One possible defense is to assert the “respectable minority” standard of care. Or the treating physician can plead clinical innovation for a difficult or desperate situation. Yet another defense is to assert assumption of risk. In Schneider v. Revici, a physician recommended nutritional (selenium and dietary restrictions) and other nonsurgical treatments for breast cancer. The patient had signed a detailed consent form disclosing that the treatments lacked Food and Drug Administration approval and could not be guaranteed and agreed to release the physician from liability. The cancer spread and the patient sued for common law fraud, medical malpractice, and lack of informed consent, but the court of appeals held that assumption of risk is a complete defense. The same court held in another case that a patient's failure to sign a consent form did not preclude the jury from considering the assumption of risk defense, as consent may be written or verbal.

Even if it is the patient's choice, physicians must still exercise due care when implementing CAM. In Gonzalez v. New York State Department of Health, Dr. Gonzalez was charged with gross negligence and incompetence after he used unconventional therapies to treat six patients with incurable cancer who had failed or rejected conventional treatment. A hearing committee found that he missed signs of disease progression and failed to perform adequate assessments, testing, and follow-up. The court held that a patient's consent to or even insistence upon a certain treatment does not relieve the physician from the obligation of providing the usual standard of care.

The allopathic physician should stay up to date with therapeutic developments in CAM. For example, a 1997 National Institutes of Health consensus statement supported acupuncture as a legitimate therapy with proven efficacy for adult postoperative- and chemotherapy-induced nausea and vomiting. Many “nontraditional” treatments, such as those for back pain, are gaining acceptance. When discussing alternative therapy with a patient, the physician should first fully inform the patient about conventional treatments and their limitations. Next, the physician should explain why the novel, rather than the recognized conventional therapy is being considered. Finally, whether the physician intends to carry out CAM therapy or refer to another practitioner, the patient must be warned about the potential risks associated with such therapy.

In order to guard against malpractice liability, one might consider the approach recommended by Cohen and Eisenberg: Where safety and or efficacy are not established, physicians should be guarded in offering the treatment. They should discourage patients from pursuing dangerous treatments such as injections of unapproved substances and pay close attention to known herb-drug interactions, for example, St. John's wort interacting with oral contraceptives, chemotherapy agents, and immunosuppressants, and ginkgo biloba affecting anticlotting medications. Physicians must also routinely inquire about herbal and home remedies when obtaining a medication history. If a patient insists on CAM treatments despite warnings, document the discussion carefully, including disclosure of potential dangers and lack of efficacy.

Back pain, then sudden death

BACK AND CHEST PAIN prompted a 42-year-old man to see a doctor. The family physician took the man’s blood pressure, which was 184/130, but performed no other testing. He prescribed pain medication and sent the patient home. The man died 3 days later of an aortic dissection.

PLAINTIFF’S CLAIM The physician was negligent because he did not try to lower the patient’s blood pressure or order a radiograph before sending him home.

THE DEFENSE There was no reason to suspect aortic dissection; the rupture was sudden and catastrophic.

VERDICT Alabama defense verdict.

COMMENT Although the defense prevailed, this case reminds us to always consider less common causes of low back pain.

Increase in morphine dose has fatal results

BREATHING DIFFICULTIES associated with chronic obstructive pulmonary disease led to the hospitalization of a 79-year-old woman. While there, she suffered respiratory arrest and a code was called. The pulmonologist on duty and the attending physician responded. After the patient was bagged, she started breathing on her own.

The attending physician subsequently discussed the patient’s treatment plan and prognosis with her daughter, who agreed to a do-not-resuscitate order. He ordered 2 mg morphine as needed for comfort.

Minutes later, the pulmonologist overrode the order and ordered 20 mg morphine by IV push. After it was given, the patient lost consciousness while talking to her daughter and granddaughter. She died about 3 hours later without regaining consciousness.

PLAINTIFF’S CLAIM The patient was improving until the night before her arrest, when she failed to get her scheduled breathing treatment. The pulmonologist was negligent in ordering 20 mg morphine, and the hospital nurses were negligent in administering it.

THE DEFENSE No negligence occurred. The patient would have died sooner than 3 hours after the morphine dose if morphine was, indeed, the cause of death.

VERDICT $3 million Georgia verdict.

COMMENT Do not resuscitate does not mean negligible risk of malpractice. Orders for 20 mg (!) of morphine will always be difficult to defend—even in a terminally ill patient.

Breast cancer diagnosis falls through the cracks

AFTER NOTICING A LUMP IN HER LEFT BREAST, a woman in her 40s underwent a screening mammogram rather than a diagnostic mammogram at a local facility. The mammogram showed no abnormalities, but an ultrasound examination the following year was abnormal. The report was faxed to her physician, who reportedly didn’t receive it. No follow-up occurred.

A year later, the patient made a follow-up appointment on her own and underwent diagnostic mammography and surgical biopsy, which revealed advanced breast cancer. A vacuum-assisted core biopsy and clip localization the following month revealed infiltrating ductal carcinoma. Neoadjuvant chemotherapy resulted in complications and hospitalization. The patient subsequently underwent additional chemotherapy and radiation treatments.

PLAINTIFF’S CLAIM The defendant health care facility didn’t properly evaluate the patient for breast cancer.

THE DEFENSE The defendant denied liability and asserted that its personnel acted within the standard of care.

VERDICT $575,000 South Carolina settlement.

COMMENT Follow-up and tracking of results remain key in preventing malpractice.

Back pain, then sudden death

BACK AND CHEST PAIN prompted a 42-year-old man to see a doctor. The family physician took the man’s blood pressure, which was 184/130, but performed no other testing. He prescribed pain medication and sent the patient home. The man died 3 days later of an aortic dissection.

PLAINTIFF’S CLAIM The physician was negligent because he did not try to lower the patient’s blood pressure or order a radiograph before sending him home.

THE DEFENSE There was no reason to suspect aortic dissection; the rupture was sudden and catastrophic.

VERDICT Alabama defense verdict.

COMMENT Although the defense prevailed, this case reminds us to always consider less common causes of low back pain.

Increase in morphine dose has fatal results

BREATHING DIFFICULTIES associated with chronic obstructive pulmonary disease led to the hospitalization of a 79-year-old woman. While there, she suffered respiratory arrest and a code was called. The pulmonologist on duty and the attending physician responded. After the patient was bagged, she started breathing on her own.

The attending physician subsequently discussed the patient’s treatment plan and prognosis with her daughter, who agreed to a do-not-resuscitate order. He ordered 2 mg morphine as needed for comfort.

Minutes later, the pulmonologist overrode the order and ordered 20 mg morphine by IV push. After it was given, the patient lost consciousness while talking to her daughter and granddaughter. She died about 3 hours later without regaining consciousness.

PLAINTIFF’S CLAIM The patient was improving until the night before her arrest, when she failed to get her scheduled breathing treatment. The pulmonologist was negligent in ordering 20 mg morphine, and the hospital nurses were negligent in administering it.

THE DEFENSE No negligence occurred. The patient would have died sooner than 3 hours after the morphine dose if morphine was, indeed, the cause of death.

VERDICT $3 million Georgia verdict.

COMMENT Do not resuscitate does not mean negligible risk of malpractice. Orders for 20 mg (!) of morphine will always be difficult to defend—even in a terminally ill patient.

Breast cancer diagnosis falls through the cracks

AFTER NOTICING A LUMP IN HER LEFT BREAST, a woman in her 40s underwent a screening mammogram rather than a diagnostic mammogram at a local facility. The mammogram showed no abnormalities, but an ultrasound examination the following year was abnormal. The report was faxed to her physician, who reportedly didn’t receive it. No follow-up occurred.

A year later, the patient made a follow-up appointment on her own and underwent diagnostic mammography and surgical biopsy, which revealed advanced breast cancer. A vacuum-assisted core biopsy and clip localization the following month revealed infiltrating ductal carcinoma. Neoadjuvant chemotherapy resulted in complications and hospitalization. The patient subsequently underwent additional chemotherapy and radiation treatments.

PLAINTIFF’S CLAIM The defendant health care facility didn’t properly evaluate the patient for breast cancer.

THE DEFENSE The defendant denied liability and asserted that its personnel acted within the standard of care.

VERDICT $575,000 South Carolina settlement.

COMMENT Follow-up and tracking of results remain key in preventing malpractice.

Back pain, then sudden death

BACK AND CHEST PAIN prompted a 42-year-old man to see a doctor. The family physician took the man’s blood pressure, which was 184/130, but performed no other testing. He prescribed pain medication and sent the patient home. The man died 3 days later of an aortic dissection.

PLAINTIFF’S CLAIM The physician was negligent because he did not try to lower the patient’s blood pressure or order a radiograph before sending him home.

THE DEFENSE There was no reason to suspect aortic dissection; the rupture was sudden and catastrophic.

VERDICT Alabama defense verdict.

COMMENT Although the defense prevailed, this case reminds us to always consider less common causes of low back pain.

Increase in morphine dose has fatal results

BREATHING DIFFICULTIES associated with chronic obstructive pulmonary disease led to the hospitalization of a 79-year-old woman. While there, she suffered respiratory arrest and a code was called. The pulmonologist on duty and the attending physician responded. After the patient was bagged, she started breathing on her own.

The attending physician subsequently discussed the patient’s treatment plan and prognosis with her daughter, who agreed to a do-not-resuscitate order. He ordered 2 mg morphine as needed for comfort.

Minutes later, the pulmonologist overrode the order and ordered 20 mg morphine by IV push. After it was given, the patient lost consciousness while talking to her daughter and granddaughter. She died about 3 hours later without regaining consciousness.

PLAINTIFF’S CLAIM The patient was improving until the night before her arrest, when she failed to get her scheduled breathing treatment. The pulmonologist was negligent in ordering 20 mg morphine, and the hospital nurses were negligent in administering it.

THE DEFENSE No negligence occurred. The patient would have died sooner than 3 hours after the morphine dose if morphine was, indeed, the cause of death.

VERDICT $3 million Georgia verdict.

COMMENT Do not resuscitate does not mean negligible risk of malpractice. Orders for 20 mg (!) of morphine will always be difficult to defend—even in a terminally ill patient.

Breast cancer diagnosis falls through the cracks

AFTER NOTICING A LUMP IN HER LEFT BREAST, a woman in her 40s underwent a screening mammogram rather than a diagnostic mammogram at a local facility. The mammogram showed no abnormalities, but an ultrasound examination the following year was abnormal. The report was faxed to her physician, who reportedly didn’t receive it. No follow-up occurred.

A year later, the patient made a follow-up appointment on her own and underwent diagnostic mammography and surgical biopsy, which revealed advanced breast cancer. A vacuum-assisted core biopsy and clip localization the following month revealed infiltrating ductal carcinoma. Neoadjuvant chemotherapy resulted in complications and hospitalization. The patient subsequently underwent additional chemotherapy and radiation treatments.

PLAINTIFF’S CLAIM The defendant health care facility didn’t properly evaluate the patient for breast cancer.

THE DEFENSE The defendant denied liability and asserted that its personnel acted within the standard of care.

VERDICT $575,000 South Carolina settlement.

COMMENT Follow-up and tracking of results remain key in preventing malpractice.

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert's proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist's standard for a general practitioner, or an endocrinologist's standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS §12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician's patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon's charge of $7,000 for two hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “… they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. … Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association's right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: A witness may be qualified as an expert based on:

A. Knowledge or education, but not experience alone.

B. Skill, but not training alone.

C. Knowledge, skill, experience, training, or education.

D. Whether a witness qualifies as an expert is determined by the judge and jury.

E. A nurse may equally offer expert testimony in a medical malpractice case.

Answer: C. In a malpractice trial, the plaintiff has to show via expert medical testimony that the defendant doctor has breached the standard of care. Court rules of evidence dictate that the expert must possess “the knowledge, skill, experience, training, or education” necessary for establishing that standard. These qualification criteria are not overly restrictive, and evidence is admissible so long as it is relevant and reliable. However, lay testimony usually is insufficient to define the standard of care, unless it falls under the “common knowledge” exception (res ipsa loquitur). The judge, not the jury, makes these determinations.

The expert’s proffered standard must take into account the circumstances of the case and the qualifications of the defendant-doctor. For example, in litigated cases involving diabetic complications, the courts have disallowed using an internist’s standard for a general practitioner, or an endocrinologist’s standard for an internist.

A qualified doctor rather than a nurse or an allied health professional usually will serve as the expert, although doctors have been allowed to testify outside their specialty, for example, an internist with subspecialty training in infectious diseases was qualified as a plaintiff expert in a stroke case. However, Arizona has a recent statute, ARS ?12-2604 (A), which requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state Court of Appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law, which makes it more difficult to qualify as a medical expert in an Arizona courtroom.

Most malpractice lawyers have a listing of available experts, derived from past experiences, contacts, or word-of-mouth recommendations. Some plaintiff organizations have access to willing medical experts, and ads in the media and legal journals identify doctors wishing to act as experts. Attorneys generally seek experts who communicate well. How the jury perceives the expert is crucial. Qualifications might be what are initially assessed, but communication skills, credibility, and demeanor can matter more.

Can a physician be forced to testify as an expert?

The Wisconsin Supreme Court has held that whereas a treating physician might be required to provide expert testimony regarding the care of his/her own patient, he/she cannot be forced to give expert testimony regarding the standard of care of another physician’s patient unless the judge has determined that there are compelling circumstances. Additionally, there must be reasonable compensation and no requirement to do additional preparation in order to provide expert testimony.

The reimbursement rate for an expert varies widely, usually in the range of $200-$500/hour for review work. These figures are of course higher for depositions and live testimony in open court. A Colorado court has held that a deposition fee of $2,000/hour was grossly excessive, and a New Jersey federal magistrate judge characterized a neurosurgeon’s charge of $7,000 for 2 hours of deposition as “near to being extortionate.” In Europe, expert witnesses are appointed by the courts, and are compensated according to a standard fee schedule.

In 1995, the American College of Cardiology put forth seven criteria for expert witnesses. Of particular import is criterion seven, which states: “Expert witness testimony should be fair, thorough, and objective. It should not exclude any relevant information that has a bearing on the case.” Various other medical associations and malpractice insurers have published similar guidelines for those asked to testify as experts.

The American Medical Association considers providing expert medical testimony to be analogous to the practice of medicine. It has this to say about the ethical responsibilities of medical experts: “ ... they should have recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion. ... Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

Finally, in Austin vs. American Association of Neurological Surgeons, the seventh U.S. Circuit Court of Appeals reaffirmed an association’s right to discipline a physician for improper medical testimony. The case involved a Detroit neurosurgeon who testified for the plaintiff against a fellow association member who allegedly caused permanent recurrent laryngeal nerve damage following an anterior cervical fusion. The court wrote, “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 the testimony is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less.”

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).