Practicing what you preach—or not

Is it okay for an expert witness to say that the standard of care is X, but, personally, I do Y? Smethers v. Campion , 1 CA-CV 04-0117, Dept. C 2005, provides some insight. The plaintiff wore soft contact lenses for 9 years. During that time, his prescription never changed, and the 11 eye measurements made during that time remained stable. He decided to go for LASIK surgery; when he went for the evaluation, he removed his lenses so that presurgical testing and measurements could be conducted. As a general rule, wearing contacts affects the shape of the cornea; the patient must remove the lenses at least several days before the surgery so that correct measurements can be obtained of the cornea’s natural shape, and these measurements are then used for the procedure. The defendant, however, chose to use the measurements taken over the past 9 years instead of the presurgical ones. The surgery was not successful. The plaintiff never regained adequate vision, and a malpractice suit ensued.

At the trial, the plaintiff’s expert testified that the standard of care is “to remove the lenses for several days before taking preoperative measurements… [because] the measurements must be based on the natural shape of the cornea, and because contact lenses alter the shape of the cornea, removal of the lenses for several days to restore the natural shape of the cornea is necessary for accurate measurements.” Thus, the plaintiff claimed that by using the old measurements the standard of care was breached, causing the failure of the surgery and the resulting injury.

The defendant’s expert testified at his deposition that relying on the stable measurements acquired over 9 years conformed to the standard of care, but he also testified that in his own practice he would have remeasured before surgery. Before trial, the defendant moved to preclude any testimony regarding both experts’ personal practices and merely confine their testimony as to whether the defendant’s activities conformed to the standard of care and why. This motion was granted. The trial resulted in a defense verdict, and the plaintiff appealed on the basis that the trial court erred by not allowing the experts to be questioned about what they personally do in their practices.

The appellate court first restated the duty or the standard of care that a physician owes to his patients. As defined by statute, it is “[t]o exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.” This is where it gets interesting. The court then stated the following.

The standard clearly is not the “highest degree” of care or skill; … it is at least a minimum level of skill and care practiced by a community of physicians, as measured by the circumstances and facts of a given case. In that regard, the standard of care of necessity is not static, but rather must be flexible and fluid, and dependent upon the nature of the medical situation.

In light of the scientific advances in the diagnosis and treatment of physical conditions and diseases, the standard of care evolves and is subject to change. Further, because a significant component of diagnosis and treatment is the practitioner’s exercise of judgment, there are, understandably, different viewpoints as to how a medical condition may be identified, evaluated and treated. Those differing viewpoints can be and are commonly expressed in the medical community in medical schools, post-graduate training programs and professional meetings, and also through textbooks and other medical literature. Over the years, some ideas advanced in texts or medical journals, controversial when posed, have become well accepted and routinely followed. Other ideas and concepts, enthusiastically embraced at the onset, have fallen from favor and can no longer be considered authoritative on the particular subject.

Accordingly, the parameters of the standard of care applicable in a given case, and whether such standard was complied with, are often vigorously advocated to the trier of fact through the opinion testimony of “expert” medical witnesses. As a foundational element, each such expert must establish that he or she is qualified to offer an opinion on the subject matter involved. Generally, that means that the witness must possess sufficient education, training and experience concerning a subject relevant to the action that will assist the trier of fact in resolving one of the disputed issues in the case. As it relates to the standard of care, such proffered expert must generally practice or have sufficient training and experience in the same area of practice as the defendant physician so as to be in a position to opine on what the applicable standard of care is for a given situation, and whether the defendant complied with the same in the care and treatment of the patient.

The advent of specialty residency programs, the use of standard textbooks and reference to specialty-oriented medical literature, the use of national testing and certification for such specialty, and the creation of and membership in specialty professional organizations are intended to create a consensus and to encourage uniformity, in the diagnosis and treatment of a disease or condition. Accordingly, the statewide standard of care for physicians practicing in a discrete specialty such as corrective eye surgery may reflect a “national” specialty standard of care; in other words, the degree of care, skill and learning exercised by reasonably prudent specialists in such field across the country.

The court then noted that the definition of the standard of care, as stated above, does little to identify how that standard is to be determined. Traditionally, this has been attempted through the “battle of the experts.” Unfortunately, what has evolved is often confusing for the jury and in reality does nothing but make malpractice trials longer. However, as poor as the system is, it is still the best way that both sides can argue their respective positions. The court stated that in many trials the number of experts is limited; this only serves to heighten the importance of what those who testify have to say. The jury then tends to focus on the credibility of each expert. The courts help in this process by giving the jury instructions on how to use an expert’s testimony. The court then gave the following as an example of a common jury instruction.

In deciding the facts of this case, you should consider what testimony to accept, and what to reject. You may accept everything a witness says, or part of it, or none of it.

In evaluating testimony, you should use the tests for truthfulness that people use in determining matters of importance in everyday life, including such factors as the witness’s ability to see or hear or know the things the witness testified to; the quality of the witness’s memory; the witness’s manner while testifying; whether the witness had any motive, bias, or prejudice; whether the witness was contradicted by anything the witness said or wrote before trial, or by other evidence; and the reasonableness of the witness’s testimony when considered in the light of the other evidence. Consider all of the evidence in the light of reason, common sense, and experience.

A witness qualified as an expert by education or experience may state opinions on matters in that witness’s field of expertise, and may also state reasons for those opinions. Expert opinion testimony should be judged just as any other testimony. You are not bound by it. You may accept it or reject it, in whole or in part, and you should give it as much weight as you think it deserves, considering the witness’s qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.

The defendant’s expert testified at his deposition that, in his practice, if the patient wore hard contacts, he would have the patient remove them and wait a month before remeasuring for the surgery (the Food and Drug Administration recommends 2 weeks), and for patients wearing soft contacts, such as the plaintiff, he would ask for only 72 hours without lenses to obtain an accurate reading. However, he also stated that for someone like the plaintiff who had been wearing soft lenses for about a decade with no change in prescription or measurements over that time, it would not be unreasonable to just use those figures and go ahead with the surgery. Herein lies the dispute. Should an expert be allowed to testify that what the plaintiff did fell within the standard of care when he himself would have done it differently? And should the jury be allowed to hear this seemingly contradictory opinion, since such a discrepancy in testimony might confuse and prejudice the jury unfairly from the question of whether the defendant deviated from the standard of care in this particular instance? The plaintiff argued that how the expert personally practices is relevant; the defense argued that it is irrelevant. What say you, the reader?

The court then opined the following.

As a general rule, the liability test to be employed by the court and the jury is the “standard of care” that a reasonably prudent physician would exercise under the same or similar circumstances as the defendant. Therefore, the ultimate test is not whether the expert would perform a medical act and/or teach a medical act in the same way or a different way as a particular defendant. However, such a line of inquiry usually is admissible on the issue of credibility. If, for example, the plaintiff’s expert testifies that a defendant deviated from a certain standard of care, said expert’s credibility certainly would be severely shaken if, in fact, it can be shown that this expert has performed a medical act in the same or similar manner as the defendant. If a defense expert has testified that a defendant’s medical act conformed with a certain acceptable standard of care, the credibility of said testimony certainly would be severely shaken, if said expert conceded on cross-examination that he personally does not perform and/or teach the medical act in the same manner.

For the issue of the relevance of an expert’s personal practices as opposed to his opinion regarding the standard of care, the court cited another case that held the following.

While it [is] clear that a standard of care may not be established by the testimony of the personal practices of expert witnesses … we conclude … that testimony concerning the experts’ personal practices was of some relevance because each expert also testified concerning the applicable standard of care. We reach this conclusion for the following reasons. First … the actual practice in a community is the starting point in determining a reasonable standard of care. Thus, once the expert testifies concerning the standard of care, then testimony of that expert’s personal practices may help the jurors understand why that standard of care is followed by that expert or other experts.

Second, testimony regarding an expert’s personal practices may either bolster or impeach the credibility of that expert’s testimony concerning the standard of care. … The relevance and importance of a medical expert’s personal choice of a course of treatment is highly probative of the credibility of the expert’s opinion concerning the standard of care. A jury is free to disregard the expert’s opinion entirely and find that the standard of care is reflected by the course of treatment the expert would have chosen, a highly probable scenario if other evidence admitted in the case supports this proposition.

Third, because each expert addressed the applicable standard of care, testimony regarding their personal practices was proper direct and cross-examination. Thus, the jury could give whatever weight it determined was appropriate to the testimony of those experts, including ignoring it completely. (cits omit)

The appellate court reversed the trial court and ordered a new trial, allowing the questioning of the expert’s personal practices.

Commentary

So, relevant or irrelevant? Anyone who has been around the block a few times and has not drunk any particular philosophical or biomechanical Kool-Aid understands that any patient can be adequately treated in several different ways. Thus, the standard of care might encompass any number of viable treatment options and their associated mechanotherapeutic approaches. If you are the plaintiff’s expert, you will base your testimony on the importance of any differences varying from what you believe is the standard of care, no matter how minor the deviation. If you are the defendant’s expert, you will trivialize these differences and show that there are indeed several ways to skin the proverbial cat and that most if not all of them fall within the standard of care. You will harp on the de minimis difference in terms of clinical significance, relevance, and outcome.

The problem occurs not when an expert for either side says “Well, the standard of care is XYZ, but in my private practice I do ABC.” The problem arises when the plaintiff’s expert says ABC is the standard of care. The defendant’s expert will opine that yes, as the plaintiff notes, XYZ is 1 viable option in the standard of care, but so are QRS and EFG, and at times I have used all of these in my practice. I mean, think about it, we have about 65 training programs in North America and hundreds of faculty teaching residents that this is how they see a particular orthodontic problem, and these are the mechanics they would use. We don’t all see things the same way, nor do we treat malocclusions with the same mechanics. Imagine how dull our specialty would be if such were the case. What we do is just not that black and white; there is this huge gray zone within which we service our patients.

Think about this the next time you are called upon to be an expert witness. The title of this article was pretty close to hitting the nail on the head. Must we practice what we preach? I had a friend once who attended a dental conference and came back and told me of an exchange between 2 speakers. One speaker challenged the other pertaining to a statement he made about the right way to do such and such. Speaker 1 said to speaker 2, “How can you now say that you believe blah, blah, blah, when 6 years ago you wrote an article saying that you believed in yada, yada, yada?” Speaker 2 smoothly retorted that “if you are going to quote me, then you had better date me, because fluid, reasonable minds change with the available data and with time.” Score 1 for the good guys.

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Practicing what you preach—or not
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