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

In his defense, the physician introduced an expert who testified that the standard of care required clinical monitoring of symptoms to determine whether the patient was improving, and that radiography was only necessary if the patient was not showing signs of progress. Because the patient had been having bowel movements, passing gas, and was feeling better, testified the expert, the standard of care did not require radiography.

On cross-examination, (but outside the presence of the jury), the expert was asked about what he personally would have done in his practice in this situation, and the expert testified that he would have obtained radiographs. The plaintiff wanted to introduce this testimony to impeach the expert’s testimony that radiographs were not required by the standard of care in this case. The trial court judge refused to allow the testimony to be heard by the jury, stating that if the expert chose to practice above the standard of care, that was his decision and wasn’t relevant. The jury did not hear the testimony, and returned a verdict in favor of the physician. The patient appealed this ruling which excluded the testimony that the defense’s expert would have acted differently than what he testified was the standard of care.

The Appeal

On appeal, the patient claimed that the trial court was wrong to exclude the expert’s testimony about his personal medical practices. The Court of Appeals noted that generally the trial court has discretion to decide whether to admit or exclude evidence and testimony and that the trial court’s decision would not be disturbed without the showing of an abuse of discretion.

The Court of Appeals noted that the patient’s experts testified that the standard of care required post-operative radiography, and that the physician’s expert testified that the standard of care did not require radiography. “Thus,” wrote the Court in its opinion, “the jury had before it conflicting evidence on the standard of care.” The patient wished to impeach the expert using his own testimony that he would have ordered radiographs in this case. The Court of Appeals held that the trial court’s exclusion of this impeachment evidence was an abuse of discretion. It noted that a majority of other states that have addressed this issue have held that an expert can be impeached with his personal practices when those practices differ from the expert’s opinion about what is required under the standard of care. The Court of Appeals remanded the case back to the trial court for a new trial which has not yet occurred.

What's the Take-Home?

The physician was not found liable in the original trial, but it is far more likely that if the jury had heard the expert’s testimony about his own personal practices that they would have concluded that the standard of care did indeed require radiography. Especially considering that the patient had introduced the testimony of 2 experts stating that radiography was required. The physician’s expert was the only one who testified that radiography was not necessary, so the testimony that he actually would have ordered them in his own practice would have harmed his credibility with the jury. The physician stands a much greater chance of being found liable now that this conflicting testimony is allowable.

Bottom Line—You must know what the standard of care is, and you must practice at or beyond it.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.