June 1997
Volume 61 |
Number 6
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| Medical Malpractice
Litigation, Consultants and Expert Witnesses |
Herbert A. Ferrari, M.D., Ph.D., J.D.
Committee on Professional Liability
Dealing with a medical negligence case takes attorneys on a road
paved with new and unfamiliar concepts and terminology. The better
informed the attorneys are, the lower the chances that a nonmeritorious
claim will be filed. To achieve this goal, attorneys in growing
numbers are resorting early to medical-legal consultants
for advice and help. If the plaintiff attorney believes that the
patient has a valid claim against the physician, a lawsuit is
filed in a court of law, within a certain period determined by
the Statute of Limitations.
There are four requirements for the successful prosecution
of a malpractice lawsuit, namely duty, breach of duty, causation
and damages:
- The duty owed the patient (in an anesthesia case) begins
when a relationship with the anesthesiologist is established.
The anesthesiologist, as any other physician, may decline to
accept a patient in a nonemergency situation.
- The plaintiff must show that there has been a breach of
duty owed the patient; usually this happens when there is
deviation or noncompliance with the accepted standard of care.
- Causation, or proximate cause, is the link between
the breach of duty and the injury to the patient.
- The patient must have suffered damages, that is, an
injury, physical or mental.
The Players and Their Roles
The plaintiff has the burden of proving all of the above. In
some cases, the plaintiff relies on the doctrine of res ipsa
loquitur, a Latin expression that translates as "the
thing speaks for itself." Under res ipsa loquitur,
the plaintiff need not prove negligence if the injury is one that
could not occur in the absence of negligence and the defendant
was in control of the object or instrument that caused the injury.
This doctrine is not uniformly accepted and implemented in the
various states; where applied, the doctrine may relieve the plaintiff
from the requirement of proving fault through an expert witness.
In other words, negligence is presumed unless the defendant proves
otherwise ("inversion of the burden of proof").
Defendants must show that they adhered to the standard of care
which a reasonable and prudent physician follows and would provide
in identical or similar circumstances. Defendants will also claim
that there is never only one way to do any procedure, as reasonable
and prudent practitioners vary their activities according to the
circumstances and may legitimately disagree as to whether their
individual preferences represent the best of the available choices.
Physicians are liable for an error in judgment only if they fail
to act with reasonable skill and care in exercising that judgment.
The standard of care issue is so important that both parties
designate expert witnesses to help the judge and jurors understand
complex matters, so that they will be able to make informed decisions
about them.
For many years, physicians were reluctant to testify against
their colleagues, which allowed the attorneys to coin the expression
"conspiracy of silence." The "locality rule"
was in great measure responsible for that reluctance, especially
in rather small towns. With the almost universal acceptance of
the "national standards," more expert witnesses have
become available.
Numerous medical societies have provided guidelines on the issue
of medical expert witnesses. In 1986, the Council on Ethical and
Judicial Affairs of the American Medical Association published
the following statement:
"As a citizen and as a professional with special training
and experience, the physician has an ethical obligation to assist
in the administration of justice. If a patient who has a legal
claim, requests [a] physician's assistance, the physician should
furnish medical evidence, with the patient's consent, in order
to secure the patient's legal rights.
"The medical witness must not become an advocate or a
partisan in the legal proceeding. The medical witness should be
adequately prepared and should testify honestly and truthfully.
The attorney for the party who calls the physician as a witness
should be informed of all favorable and unfavorable information
developed by the physician's evaluation of the case. It is unethical
for a physician to accept compensation that is contingent upon
the outcome of litigation."
In 1987, the ASA House of Delegates approved "Guidelines
for Expert Witness Qualifications and Testimony" (last
amended in 1990). In its preamble, it states:
"The integrity of the civil litigation process in the
United States depends in part on the honest, unbiased testimony
of expert witnesses. Such testimony serves to clarify and explain
technical concepts and to articulate professional standards of
care. The ASA supports the concept that such expert testimony
by anesthesiologists should be readily available, objective and
unbiased. To limit uninformed and possibly misleading testimony,
experts should be qualified for their role and should follow a
clear and consistent set of ethical guidelines."
The medical societies have provided needed ethical guidelines
for medical expert witness testimony, but they should not insist
in trying to limit, regulate, control and intimidate the expert
witnesses. An example is the recommendation of the AMA that expert
testimony be considered the practice of medicine and, thus, subject
to the disciplinary activities of the state medical licensing
boards.
Medical expert witnesses are part of the malpractice litigation
process, and it is up to the courts to decide on issues of qualifications,
licensure and testimony.
Expert Testimony and the Courts
For most of this century, federal judges and 45 states used the
Frye rule, after a 1923 federal appeals court decision
in Frye v. United States. Under Frye, the foundation
for admissible scientific evidence had to include a showing that
the underlying theory or technique enjoys general acceptance within
the specialty field. In the last few decades, science has advanced
very rapidly and occasionally the Frye rule prevented juries
from hearing about recent research on the issues they were examining.
In 1974, Congress approved the Federal Rules of Evidence, which
determine evidentiary matters in the federal courts. Federal Rule
702 reads:
"If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education, may testify
thereto in the form of an opinion or otherwise."
The question arose as to whether Frye had survived enactment
of the Federal Rules, and the lower courts were divided over the
question. As a result, some kinds of evidence were permitted in
some jurisdictions but not in others, and verdicts and damage
awards varied greatly in cases arising from exactly the same set
of facts.
In 1991, in a Bendectin case of Daubert v. Merrell Dow Pharmaceuticals,
Inc., the Ninth Circuit Court of Appeals passed on that question.
It concluded that the Frye rule was still good law.
In 1992, the U.S. Supreme Court accepted to hear Daubert
and in 1993 rendered its decision, which had two prongs: one prong
held that the Federal Rules had overturned Frye; the second
prong announced a new standard for determining the admissibility
of scientific expert testimony. In the decision, Justice Harry
Blackmun emphasized that trial judges have an important screening
function to perform. Trial judges should ferret out unreliable
testimony by investigating experts' methods. Some questions were
suggested: Has the expert's assertion been tested? Can it be?
Has the evidence ever been published? Is it widely held to be
true by the expert's colleagues? The new standard is less stringent
than the Frye rule but considerably more demanding than
the piece-together criteria that the majority of judges had been
using.
Although the states are free to accept or reject the Daubert
test, it is hoped that it will guide lower courts to greater painstaking
decisions on what is and is not admissible in expert witness testimony
such that juries will have the best information on which to reach
a verdict. Physicians and health care institutions will then have
less reason to fear unfounded verdicts.
Herbert A. Ferrari, M.D., Ph.D., J.D.,
is Professor of Anesthesiology at St. Louis University School
of Medicine, St. Louis, Missouri, and a medicolegal consultant.
He is Chair of the Health Care Claims Advisory Committee of the
American Arbitration Association.
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