A Kentucky woman alleged that a radiologist misread three CT scans of her lungs and failed to identify and report lesions, one in either lung, that ultimately resulted in the delay of her lung cancer diagnosis. The woman’s experts testified at trial that the lesions were identifiable as matters of concern as early as February 2003, when the radiologist made the first of his alleged misreadings, and that treatment at that point would have been successful.
The woman’s doctors did not diagnose her lung cancer until August 2004, when a biopsy of a mass in her right lung showed cancerous cells (the radiologist allegedly misread additional CT scans in September 2003 and in January 2004). The woman died in 2008.
The woman’s medical malpractice lawsuit was one of forty-nine filed against the defendant radiologist after an oncologist, beginning in early 2004, alleged that the radiologist had poor practice habits and was not a reliable reader of mammograms and other diagnostic radiographic images. The radiologist typically interpreted more than 30,000 radiological examinations per year, whereas the average workload for a full time radiologist is 12,800 per year. However, a randomized review of some 10,000 of the radiologist’s interpretations from 2003 and 2004 indicated that the rate of discrepancy between the radiologist’s interpretations and those of the reviewers was well within the standard of care.
The Kentucky Board of Medical Licensure investigated the matter which resulted in a complaint against the radiologist and an Emergency Order of Suspension on July 14, 2005 (the radiologist had not practiced in Kentucky since August 2004 but had resumed his practice in Michigan). The radiologist contested the Board’s suspension and the matter was resolved through an informal resolution process that resulted in an April 13, 2006 Agreed Order. An Amended Agreed Order was entered on May 9, 2007, after the radiologist had completed an Education Plan outlined by the Board.
The Amended Order addressed the radiologist’s reading of CT scans; his reading of mammograms; the volume of readings he performed annually; and, the intracranial interventional procedures he performed as a physician Board-certified in radiology and interventional radiology. The radiologist provided an aggressive defense to the allegations against him. In light of such, the parties entered into a stipulated agreement that the radiologist’s license to practice medicine in Kentucky would for an indefinite period be conditioned on his not interpreting more than one hundred images per actual day worked and on the regular review of his interpretations by a radiologist approved by the Board.
During the woman’s medical malpractice trial, the defendant radiologist testified on his own behalf. Prior to taking the witness stand, the radiologist moved in limine to exclude any questions concerning, and any reference to, the fact that his Kentucky medical license had been temporarily suspended and later subjected to the conditions reflected in the Agreed Orders, arguing that his licensure status was a collateral matter irrelevant to his performance in this particular case.
The trial court acknowledged that the licensure matter and the reasons for it might have some relevance but ruled that the probative value of that evidence would be far outweighed by its prejudicial effect, and therefore excluded such evidence from the jury. The jury returned a defense verdict and the plaintiff appealed.
The Supreme Court of Kentucky noted that Kentucky Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” This type of evidence is generally that on other occasions a person has acted in a particular way, and it is offered as proof that the person, being the sort of person who does that sort of thing or acts that way, is likely to have done the same sort of thing or acted that same way on the occasion at issue in the case, which evidence juries are apt to give more weight than it deserves, and therefore such evidence poses a substantial risk of distracting the jury from the main question of what actually happened on a particular occasion.
However, the rule also provides that evidence of other wrongs or acts may be admissible if offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Nonetheless, even if relevant for some other purpose, there is another rule that authorizes the trial court to exclude relevant evidence if its probative value is substantially outweighed by the risk of some harm, such as undue prejudice or confusion of the issues (the general rule is that a witness cannot be cross-examined on a collateral matter which is irrelevant to the issue at hand).
The Supreme Court of Kentucky held that the issue in this case was the radiologist’s competency, and evidence that he misread the CT scans of other patients thus ran not to his knowledge (which would be a legitimate substantive purpose for admitting evidence of his license status), but merely to his propensity to commit malpractice, and that the trial court did not abuse its discretion in excluding such evidence at trial (its admissibility depends on whether there is sufficient evidence that the alleged prior acts of misconduct actually occurred and on whether the probative value of the prior-act evidence would be substantially outweighed by its prejudicial effect — given the radiologist’s denials and the qualified nature of the Amended Agreed Order, the trial court would have had very reasonable concerns that introduction of the licensure evidence, and specifically the Amended Agreed Order, could and likely would lead to a complicated trial-within-the-trial as to whether the alleged collateral CT-scan misreadings ever happened).
The Supreme Court of Kentucky did not rule out the possibility that a license suspension could provide a valid means of impeaching an expert witness in all cases; however, in this case, there was no sound basis for admitting the license-status evidence at issue because following the completion of the Board of Medical Licensure’s investigation, there was no actual license suspension, simply an informal resolution of the proceeding by an Agreed Order that restricted the radiologist’s license. The Supreme Court of Kentucky therefore held that the trial court did not abuse its discretion by excluding evidence with such limited impeachment value against the radiologist given the potential for confusing the issues to be tried and the strong likelihood that it would cause unfair prejudice.
Dr. Philip C. Trover v. Estate of Judith Burton and The Trover Clinic Foundation, Inc. d/b/a Regional Medical Center of Hopkins County v. Estate of Judith Burton and Philip C. Trover, M.D. To read the opinion of the Supreme Court of Kentucky, click here.
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