CHICAGO — The radiologist’s place in the courtroom isn’t always at the defense table, they may also be at the witness stand – serving as an expert witness.
Like the law, being an expert witness can get a little murky, as Ronald L. Eisenberg, MD, JD of Beth Israel Deaconess Medical Center, explained at RSNA 2014. “In the past, it was really difficult to get an expert witness because there was a conspiracy of silence among physicians, especially in small, rural locations,” Eisenberg said. “It was morally disloyal to testify against one’s own.”
The medical standard of care used to depend on geographic location, now the standards are national and you don’t have neighboring radiologists testifying against one another.
As expert witnesses, radiologists are required to satisfy American College of Radiology (ACR) criteria: the expert witness must be a licensed physician actively engaged in radiology; board certified in radiology; have appropriate education, training, and experience; have knowledge and skill about the subject matter; and understand the standard of care.
Expert witnesses provide the jurors with scientific, specialized information, usually in a manner easily understood by the lay person, so that the jurors or judge can understand the facts of the case and render an informed decision, Eisenberg said.
In medical malpractice lawsuits, expert witnesses are essential to establishing the applicable standard of medical care. The expert witness will be tasked with determining whether the defendant did or did not deviate from the standard of care and give their opinion based on the conduct of the parties and the circumstances.
The ACR describes the standard of care as: “the practitioner will follow a reasonable course of action based on current knowledge, available resources, and the needs of the patient to deliver safe and effective care.”
But usually what constitutes a malpractice suit is the uncertainty of whether the standard of care was violated.
“Anytime you see something with adjectives, like reasonable, or adverbs, like ordinarily, that’s what the suits are made of,” Eisenberg said. “One person says yes, the other person says no.”
What Does The Expert Witness Do?
According to the ACR, an expert witness is required to form an objective opinion based on the relevant, clinical, and radiologic information available at the time the incident occurred. Any information procured after the incident cannot be considered.
Expert witnesses should be able to explain how they came to their conclusion, and it must be based on scientifically valid and applicable facts, Eisenberg said. This information needs to reasonably withstand a peer review. Experts should also be familiar with and prepared to address potential limitations regarding their opinion, as well as the degree in which that opinion is accepted in the medical community.
“You have to be impartial, objective, and review all of the information to make sure that you have an informed and fair opinion, and everything that you look at must be of good quality,” Eisenberg said.
Expert witnesses’ compensation should only reflect the time and effort involved, and cannot be tied to the outcome of the case.
The Problem With Expert Witnesses
“The assumption from the federal rules and ACR is that the primary role of the expert is an objective source of integration and truth, rather than a zealous advocate for one party in the case,” Eisenberg said. “But this doesn’t happen.”
Eisenberg, a self-admitted naysayer, alleged that guidelines are disregarded and expert witnesses tend to be “active agents of the party paying them.” He likened these expert witnesses to a hired gun.
Eisenberg blames the legal system for subverting the goal of the expert witness to enable the jurors to better understand the facts of the case.
“What frequently happens is the whole idea of the battle of experts, selected by, affiliated with, compensated by, and apparently biased toward a particular party,” he said.
Instead of making the facts of the case easier for a jury to understand, jurors are given two different opinions from biased expert witnesses, making it impossible for the jury to decipher which expert is telling the truth.
Lawyers will shop around for the right expert witness, Eisenberg explained. “They want to find someone who is going to have an opinion that’s favorable to their cause, and someone who talks right, looks right, has the right credentials, and will work with the lawyer in developing that person’s opinion.”
Expertise, Eisenberg said, is not a priority. Rather, lawyers want witnesses with proper testimonial manner and appealing credentials.
“They want someone who is going to look good on the stand,” he said. “Even if you are brilliant with multiple degrees, if you look bad or speak poorly, [the lawyer] is not going to want you because the jury is not going to fall in love with you.”
Lawyers will prep their expert witnesses (and try to shape their opinion, according to Eisenberg). Expert witnesses will be coached on language and body mannerisms. Their testimony and questions/answers for direct examination will be reviewed. The lawyer will also anticipate approaches for the opposing attorney and prepare the expert witness appropriately.
Why Be Untruthful?
Eisenberg cited the major reasons to being an untruthful expert: financial, egotistical, gratification, and psychological pressure of being a member of the team. Some expert witnesses are dependent on their income from the litigation process, so being a good, effective performer and doing what the attorney wants you to do gives the expert a better chance of being rehired, Eisenberg said.
As a member of a team, experts might also be willing to do certain things or conceal doubt because they don’t want to disappoint the rest of the team, or the person who has hired them.
How to Be a True Expert Witness
An unbiased expert witness should see the relevant images, the exact images that the radiologist saw, and the exact history provided on the requisition. The expert should write out their findings and conclusion using only the information provided to the radiologist.
“You know it’s a malpractice suit, so you know that there is something there, but this makes it as less biased as possible, and the key is, you want nothing else,” Eisenberg said.
The expert should then contact the attorney and read them their findings, if the interpretation fits with what the attorney wanted, “you can honestly say that you can be an unbiased expert,” Eisenberg said. “If the attorney tries to cajole you into saying something else, respectfully hang up.”