Is it OK to have 4-to-1 expert ratio in medical liability case?
Editor’s note: In September 2018, the Missouri Supreme Court ruled that the jury in Shallow v. Follwell was not prejudiced by hearing four medical experts testify on behalf of a physician in a medical negligence case while just one expert witness testified on the plaintiff’s behalf.
The state’s high court said that the physician and his experts “testified about the very root of the matter in the controversy” and the evidence was not cumulative. The justices opined that “while the expert testimony overlapped at times, the experts testified about their own specialties and offered their own parts.”
The court went on to say that “when the expert testimony did overlap, the overlapping testimony went to the issue of the standard of care and causation—the ‘very root’ of a wrongful death action arising from medical negligence.”
Is a jury in a medical liability case prejudiced if they hear four medical experts testify for a physician and just one medical expert testify for a plaintiff who alleges medical negligence?
It’s a question the Missouri Supreme Court is being asked to decide and physicians say the ruling could affect the medical liability landscape in the state.
The Litigation Center of the American Medical Association and State Medical Societies and the Missouri State Medical Association in April weighed in on the case with a joint friend-of-the-court brief that says a Missouri trial court judge was correct in allowing multiple experts to testify for a physician because their individual, specialized expertise allowed the case to be decided on proper medical science. They note the plaintiffs could have offered up more experts too.
“Juries must assess surgical techniques, risks, impacts of pre-existing conditions and other scientific issues that often are outside of their expertise. They also must make these decisions in the context of sympathetic plaintiffs alleging severe harm, including wrongful death,” says the Litigation Center brief. “Given the highly specialized nature of medicine today, multiple experts may be required to ensure a jury has a proper understanding of the relevant medical science.”
Ensuring proper science in the courtroom
The case, Shallow v. Follwell, stems from a laparoscopic hernia repair surgery. Richard Follwell, DO, performed the surgery on Saundra Beaver after she was diagnosed with an incisional hernia. After the surgery, the patient complained of pain but an evaluation did not find any indication of an injured or perforated bowel, according to court documents.
About 30 hours later, Beaver returned to the hospital and was diagnosed with atrial fibrillation, septic shock, metabolic acidosis and acute kidney failure. She was later diagnosed with, among other things, a perforated bowel. She had three operations in the next few days for issues related to the perforated bowel. She died about six months later, court documents show.
At the trial, plaintiffs had one expert testify. Dr. Follwell had four expert witnesses who responded to the allegations and explained alternative causes for a perforated bowel. The experts testified in their areas of expertise: cardiology, critical care, vascular surgery and colorectal surgery.
The Litigation Center brief notes that “the trial court made sure that each expert ‘gave their own parts’ and instructed the jury not to give weight to the number of experts on either side.”
Based on the testimony, the trial court jury found that Dr. Follwell did not cause the perforated bowel or Beaver’s death. However, on appeal, the Missouri Court of Appeals overturned the verdict and ordered a new trial, saying the cumulative effect of the four experts’ testimony prejudiced the plaintiff.
The AMA Litigation Center brief asks Missouri’s high court to uphold the trial court judge’s decision to allow the four experts to testify and to overturn the Missouri appellate court ruling, urging the high court to “ensure that Missouri trial judges are empowered to safeguard the use of sound science in their courtrooms.”
“The jury’s agreement with these experts does not mean the jury was prejudiced by them,” the AMA Litigation Center’s brief says. “Given the nature of the surgery and timing of the perforated bowel, there is real concern that the jury would presume causation and not give the physician a fair hearing.”
Wrong to discourage expert testimony
The brief notes that the AMA Code of Medical Ethics instructs physicians to testify only in areas where “they have appropriate training and recent, substantive experience and knowledge so their testimony will reflect “current scientific thought and standards of care that have gained acceptance among peers in the relevant field.”
If physicians testify in areas they aren’t experts in, it can lead to expert-witness shopping that results in jurors being ill-informed about the medical cases they are judging, the brief says.
And more than false compensation is at stake when liability isn’t grounded in science. Civil litigation also forces defendants to change their conduct. The AMA Litigation Center brief explains that “changing medical standards of care, for example, based entirely on inaccurate facts or false assumptions could do more harm than good. Patients may be subject to more tests, which could have risks and costs, without any corresponding benefit.”