Legal Pearls: Expert Testimony – “Do As I Say, Not As I Do?”

Today, we look at a case where an appeals court had to decide whether the fact that a medical expert testified about the standard of care, but then admitted that he would have done something else in the same situation, can be used to impeach his testimony about the standard of care.

Clinical Scenario

The patient was a 56-year-old man with a history of chronic obstructive pulmonary disease who presented to the emergency department with shortness of breath and a cough. Two days later, he had developed a low-grade fever and was having gastrointestinal problems and abdominal pain. A CT scan revealed several gallstones and a dilated transverse colon.

The surgeon saw the patient and noted that he had moderate distention of the abdomen, particularly in the upper-right quadrant, had guarding of the upper-right quadrant, and reported mild bloating and upper abdominal discomfort. The physician noted that the CT showed gallstones. He ordered a radiography of the patient’s abdomen the next day. The imaging report revealed that the patient had a gas distended transverse colon consistent with the findings of the CT scan, and the report stated that the findings could represent a local ileus or low-grade descending colon obstruction. Based on the radiography and the clinical picture, the physician suspected that the patient had an early infection of the gallbladder.

The surgeon performed laparoscopic surgery to remove the gallbladder that day. During surgery, the physician noted that his colon was swollen, and so he carefully monitored the patient’s condition after surgery. The physician was pleased to note that the patient had no fever following surgery, reported the pain in his upper quadrant as “minimal,” and began ambulating. The physician reduced the amount of his narcotics in order to stimulate the bowel and ordered neostigmine. Subsequently, the patient began passing gas regularly, had several bowel movements, and his abdomen went from firm and distended to soft and not distended. Because he believed the clinical picture showed clear improvement of the patient’s condition, the physician did not order imaging of the patient’s abdomen in the days following surgery.

Four days after the surgery, the patient’s colon perforated, requiring emergency surgery, and resulting in various complications, several more surgeries, and a stay in a rehabilitation facility. When the patient finally recovered, he sued the physician.

The Lawsuit