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Evidence of an Expert’s Personal Practices is now Admissible in Medical Malpractice Trials

By Jack H. FarnbauchJune 28, 2017

Evidence of an Expert’s Personal Practices is now Admissible in Medical Malpractice Trials

In a case of first impression, the Indiana Court of Appeals ruled a patient in a medical malpractice case should have been able to cross-examine the medical expert about his/her own personal medical practices to test whether the expert is “practicing what he/she is preaching” from the witness stand during medical medical malpractice trials. 

David Oaks filed a complaint for damages against Dr. Timothy Chamberlain for medical malpractice, alleging that Dr. Chamberlain failed to follow the standard of care. Oaks suffered a perforated colon which required surgery to repair the removal of his spleen and a long rehabilitation that included more operations. Oaks argued that the surgeon, Chamberlain should have ordered an x-ray after the surgery to remove his gallbladder which would have shown a problem in the colon.

At a five-day jury trial, both Oaks and Dr. Chamberlain produced expert medical testimony as to the standard of care for a patient in the same post-operative situation as Oaks.  Oaks made an offer of proof in which he elicited testimony from one of Dr. Chamberlain’s witnesses, Dr. Moore, that Dr. Moore’s treatment of a patient in the same situation as Oaks would have included ordering x-rays, even though Dr. Moore had testified that x-rays were not required by the standard of care.   The trial court excluded that testimony and the jury returned a verdict in Dr. Chamberlain’s favor.  

Oaks appealed to the Indiana Court of Appeals and raised the question of whether cross-examination of an adversary medical expert on his or her personal practices can be used to impeach the expert’s credibility regarding his or her opinion on the standard of care. Because this was a case of first impression in Indiana, Oaks noted that a majority of other states to address this issue have held an expert can be impeached with his personal practices when they differ from the accepted practices known as “the standard of care.” 

The Court of Appeals reversed the trial court and remanded the case for a new trial. The Indiana Court of Appeals found Moore’s testimony was incomplete because he only stated he would have gotten an x-ray but did not give a reason why he would have done so. The appellate court also found that the jury is capable of understanding that the standard of care and a witness’s credibility regarding the standard of care are not one and the same. Finally, it ruled that the exclusion of Moore’s personal practices testimony had a probable impact on the jury’s verdict. At the trial, the jury found that Dr. Chamberlain did not breach the standard of care. 

This Court of Appeals decision is a very important decision for Indiana consumers who are the victim of medical malpractice. 

Read more here.