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            Both plaintiff’s attorneys and defense attorneys rely on expert physician testimony to articulate what the standard of care is in a medical malpractice case.  Many physicians who are actively practice medicine, also render expert opinions on legal matters.  Physicians often think of expert consulting as a practice which is distinct from the practice of medicine.  However, the U.S. Court of Appeals for the Seventh Circuit has recently held that physicians can be disciplined by a professional society for rendering speculative expert opinions which are outside of their area of expertise. 

            In this Illinois case, Dr. Austin had been retained to testify on behalf of a plaintiff whose recurrent laryngeal nerve was permanently damaged in the course of an anterior cervical fusion performed by Dr. Ditmore.  As a result, the plaintiff’s vocal cords became paralyzed, she had difficulty swallowing, and she experienced shortness of breath.  She eventually had to undergo a tracheotomy to treat her symptoms.  The procedure Dr. Ditmore performed was an operation to repair a nerniated disc at the back of the plaintiff’s neck.  To perform the procedure, Dr. Ditmore was required to cut into the spine from the front and go through the neck being careful to retract the tissues in front of the spine.  

            At trial, Dr. Austin testified that he believed the majority of neurosurgeons would concur that the plaintiff could not have suffered a permanent injury to her recurrent laryngeal nerve unless Dr. Ditmore had been careless.  It was Dr. Austin’s opinion that the plaintiff had no anatomical injury that might have enabled such an injury to result without negligence on Dr. Ditmore’s part.  There was also evidence that because the recurrent laryngeal nerve is difficult to see, and is often not seen during an operation, it may be impossible to determine whether the particular patient’s nerve is unusually susceptible to injury. 

            At trial, Dr. Austin claimed that his expert opinion was based upon an article of Dr. Ralph Coward who is the father of anterior cervical fusion and another article by a physician named Watkins.  Dr. Austin claimed the articles at issue concluded that serious complications of this surgery can be prevented by adhering strictly to surgical techniques.  A subsequent review of the Coward article showed that Dr. Coward was making a general statement of reassurance which Dr. Austin took out of context to bolster his opinion.  This article did not specifically discuss the risk of permanent damage to the recurrent laryngeal nerve.   The Watkins article likewise did not say that nerve injury can be prevented with gentle retraction. 

            The literature on this topic actually showed that injuries to the recurrent laryngeal nerve is a known, but rare, complication, that physicians should warn patients about.  When asked on cross-examination why there was not sufficient literature to support his testimony that most physicians would agree with his testimony, Dr. Ditmore stated that medical-legal environment discouraged the surgical community from acknowledging that this complication could occur only through negligence. 

            Ditmore was not really an expert on anterior fusion, having only performed about 25 to 30 procedures in more than thirty years of practice.    In contrast, Dr. Ditmore had performed 700 anterior cervical fusions.  Of the 700 cases, the plaintiff’s case is the only one which resulted in nerve damage. 

            The jury found in favor of Dr. Ditmore at the end of the trial.  After the trial of the medical malpractice case, Dr. Ditmore lodged a complaint against Dr. Austin with the American Association of Neurological Surgeons claiming that Dr. Ditmore had no basis for testifying that most neurosurgeons agreed with his view. The Association inevitably decided to suspend Dr. Austin after conducting a full hearing.  The Association found that Dr. Austin’s testimony was irresponsible and violated a number of the Association’s ethical codes.  Dr. Austin voluntarily resigned from the Association and then filed a lawsuit against them claiming that their decision to suspend his membership privilege was made in bad faith because he testified on behalf of a plaintiff as opposed to a defendant.  As part of the lawsuit, Dr. Austin was seeking damages for loss of expert witness income and requested that the suspension be expunged from the record. 

            The U.S. District Court of Illinois dismissed Dr. Austin’s lawsuit, and Dr. Austin appealed to the Seventh Circuit.  The Seventh Circuit upheld the decision to dismiss the case.  Since admission to the Association was not a precondition to practice medicine, the Court did not believe that Dr. Austin had an economic interest in his membership.  The Seventh Circuit also found no evidence to suggest that the Association only suspends physicians who testify on behalf of plaintiffs to support Dr. Austin’s claim that he was suspended in bad faith.  The Court believed that the Association had an interest in policing its members to prevent them from offering shoddy expert testimony.  Overall, the Court believed that sanctioning poor quality physician testimony would lead to the improvement of the quality of health care. 

            Expert physicians should think twice about going out on a limb to provide speculative testimony in exchange for money.  The Austin decision suggests that rendering expert medical opinions is still part of the practice of medicine, which is governed by the hyppocratic oath.  Defendant physicians may consider filing complaints with professional organizations against expert physicians who render unsound medical opinions against them at medical malpractice trials.  If other associations initiate discipline against physicians who engage in these practices, it may discourage experts from supporting speculative lawsuits. 

Expert Physician Testimony

by Attorney Frank E. Reardon

August 2001