The Court of Appeals of Indiana (“Indiana Appellate Court”) decided in its opinion filed on May 11, 2017 that cross-examination of an adversary’s 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 in a medical malpractice case. The Indiana Appellate Court stated the issue before it was whether personal practices testimony would be relevant and admissible to impeach the credibility of the expert’s standard of care testimony.
In the case it was deciding, the defendant surgeon had performed laparoscopic surgery to remove the plaintiff’s gallbladder on December 11, 2009. During the surgery, the defendant observed that the plaintiff’s colon was swollen and therefore carefully monitored the plaintiff’s swollen colon and continued ileus after the surgery. Because the plaintiff began passing gas on a regular basis, had several bowel movements, and his abdomen went from firm and distended to soft and not distended, the defendant surgeon believed the clinical picture showed marked improvement and he did not obtain x-ray images of the plaintiff’s abdomen in the days following surgery.
On December 15, 2009, the plaintiff’s colon perforated, allowing air and fecal matter to escape into his abdomen. The perforation of the colon was due to a combination of enlargement of, and a lack of blood supply to, the colon. The defendant surgeon performed emergency surgery during which he repaired and resected the bowel and performed an anastomosis as well as removed the plaintiff’s spleen. Following the surgery, the plaintiff had various complications, including another perforation, and required additional treatment and surgeries by other medical providers as well as a stay in a rehabilitation facility.
The plaintiff filed his Indiana medical malpractice complaint against the defendant surgeon, alleging that the defendant breached the standard of care by failing to obtain serial x-rays of the plaintiff’s abdomen after surgery. One of the defendant’s medical expert’s testified during the five-day trial that the standard of care required clinical monitoring of symptoms to determine whether the patient was improving and that x-rays would only be obtained if the patient was not showing signs of progress, and that the plaintiff showed signs of progress following the original surgery and therefore the standard of care did not require further x-rays.
The plaintiff’s medical malpractice attorney made an offer of proof outside the presence of the jury and elicited testimony from the defendant’s expert that showed that if he had been permitted to question the defendant’s expert about his own personal medical practices, the expert would have testified that he would have obtained an x-ray in a post-operative situation like that of the plaintiff’s. Nonetheless, the trial judge did not permit the requested questioning before the jury and the Indiana medical malpractice jury returned its verdict in favor of the defendant surgeon. The plaintiff appealed.
The Indiana Appellate Court noted that the jury had before it conflicting evidence on the standard of care, and the plaintiff wished to use the defendant’s expert’s testimony that he would have ordered an x-ray in the plaintiff’s situation to impeach the expert’s testimony that the standard of care did not require x-rays. The Indiana Appellate Court held that “the trial court’s exclusion of this impeachment evidence was an abuse of discretion.”
The Indiana Appellate Court held: “Given the prevailing view in other states, Indiana’s long-standing rule that a witness’ credibility may be attacked by any party, and the essential role of cross-examination in determining the trustworthiness of testimonial evidence, we join the abundant authority from other states and hold that the admission of an expert’s testimony about his or her personal practices in medical malpractice cases is permissible for the purpose of impeaching that expert’s testimony about the standard of care … [the defendant’s expert’s] testimony about his personal practices was in conflict with his testimony on the standard of care. Therefore, his personal practices testimony was relevant and admissible … [E]ven if [the defendant’s expert] had testified that he would merely go “above” the standard of care by ordering an x-ray, his personal practices testimony would be relevant and admissible.”
The Indiana Appellate Court concluded: “we hold that that the admission of [the defendant’s expert’s] expert testimony about his personal practices is relevant and admissible for the purpose of impeaching his testimony about the standard of care. Such testimony by [the defendant’s expert] was not more prejudicial than probative, and the trial court abused its discretion in excluding it. Moreover, because [the defendant’s expert’s] testimony was the only expert testimony that [the defendant surgeon] had met the standard of care, the exclusion of impeachment evidence from cross-examination was not harmless error. We reverse the jury’s verdict and remand for a new trial.”
Source Oaks v. Chamberlain, M.D., 92A04-1609-CC-2041.
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