Expert Witness Case Study

I am writing about case that found in favor of the plaintiff and then upheld on appeal. I was not personally involved in this case but it is a good example of why you should document your findings well and include your differential diagnoses as a clinician. It is also an example of knowing what type of medical expert you need for your case and to make sure that the person is experienced in giving expert testimony. I have chosen to keep the identities of the individuals involved in the case confidential.

 

Case Summary of ABC Medical Group, Jane Doe, MD vs Minor child (from appellate court proceedings)

Minor child was brought in to see Jane Doe, MD (who was covering for the child’s regular pediatrician) for complaints of vomiting 10-days post-op from a percutaneous kidney biopsy. Child presented with complaints of fever, vomiting, and diarrhea. MD reviewed symptoms of complications from a percutaneous kidney biopsy and understood that the most common complications are bleeding and infection with flank or abdominal pain. Vomiting is a less common complication and diarrhea is not a complication of the surgery. A urinalysis was negative for signs of infection or bleeding. The MD determined that the child had viral gastroenteritis and the patient was given a prescription for Zantac. Hydronephrosis (distention and dilation of the renal pelvis caused by an obstruction of the flow of urine from the kidney) was ruled out due to a negative physical exam for flank or abdominal pain per the MD’s testimony. A renal ultrasound or other imaging was not ordered. MD asserted she instructed the mother to bring the patient back for any “new or concerning symptoms.” MD had heard a voice mail the mother received from the surgeon and assumed the child was to have a follow-up appointment with the surgeon. The MD did not document whether or not she instructed the mother to bring the child back if he continued to vomit nor did she recall instructing her to come back to see the child’s primary pediatrician. MD did not confirm an appointment with the surgeon, nor did secure an appointment with herself or the patient’s primary pediatrician.

The child continued to have vomiting approximately once a week and the mother took him to see another provider 2 months later after the child began complaining of flank pain. The second MD diagnosed the patient with vomiting due to gastrointestinal problems and set up an appointment with a gastroenterologist. Five months after the initial post-op visit, the child was seen by another provider at a local children’s hospital. The mother reported the child’s symptoms of vomiting 1-2 times a week and hip pain. The MD ordered a battery of tests including an ultrasound which revealed a urinoma (a collection of urine outside of the ureter, which is a rare complication of percutaneous kidney biopsy). The urinoma had increased in size causing an obstruction of the kidney resulting obstructive neuropathy. The child subsequently had to have his left kidney removed.

Medical experts at trial concluded that the MD did not comply with the standard of care because the MD failed to take a complete medical history and failed to confirm a follow-up appointment with the surgeon or schedule a follow-up appointment with herself or the child’s pediatrician.

One of the experts on the medical review panel was a pediatrician with a private practice for over 20 years. The pediatrician was familiar with the standard of care for pediatricians. He held the position that the MD’s plan of care complied with the standard of care, however the court found that his “testimony was confusing and often incoherent.” The pediatrician “seemed to be deliberately failing to understand the questions of Plaintiff’s counsel, often struggling with the meaning of relatively easy to understand terms.” The pediatrician “did not give a substantial factual and reasonable basis for his opinion.” Although the court took into consideration the lack of experience in testifying by the pediatrician, the court concluded that his testimony was unconvincing. The case was found in favor of the plaintiff and the appellate court upheld the ruling. The MD lost the case.

What can be learned from this case? First as a provider, one should document your differential diagnoses and the signs and symptoms which lead you to your diagnosis. Second, it is equally important that you document an adequate plan for follow-up and that you document clear instructions on when and under what circumstances the patient is to return to the office if the patient does not improve or worsens. Third, in the case of post-op patients, one should determine and document if a follow-up appointment with the surgeon has been scheduled. Lastly, when looking for a medical expert to testify, it is important to “vet” the testifying expert to not only his or her expertise in the area of concern, but also for his or her experience with testifying before a jury. A person may be an excellent clinician and teacher, but may lack the acumen to give a credible testimony. Engaging a company that has experience in finding credible experts may save you a negative outcome in future cases.