Refusal to Strike HCLA Expert Affirmed

In Bogle v. Nighthawk Radiology Services, LLC, No. M2014-01933-COA-R3-CV (Tenn. Ct. App. April 6, 2016), the dispositive issue was whether the trial court should have stricken defendant’s expert testimony in a health care liability case based on a somewhat confusing exchange between plaintiff’s counsel and the expert on cross-examination, wherein plaintiff argued that the expert admitted that he did not know the applicable standard of care. The Court of Appeals ultimately upheld the trial court’s decision to deny plaintiff’s motion to strike and affirmed the jury’s defense verdict.

The facts underlying this case dealt with the reading of a CT scan by defendant radiologist. Plaintiff’s wife, the decedent, had undergone the implantation of a dual-lead pacemaker, and after being discharged, returned to the hospital complaining of severe chest pains. A CT scan of her chest was taken by the hospital, and the images were transmitted electronically to NIghtHawk Radiology Services, one of the defendants in this case. Dr. Jones, a radiologist who was under contract at NightHawk, read the images and sent a report back to the hospital.

Though suit was brought against several parties, at the time of trial the only remaining defendants were Dr. Jones and NightHawk Radiology. Plaintiff’s theory of the case was that “the right ventricle lead of the pacemaker had perforated the wall of the right ventricle, and that this perforation was visible on the CT scan but was not noted or mentioned in the report of Dr. Jones and NightHawk Radiology.” Plaintiff asserted that the failure to report this perforation was a breach of the applicable standard of care. The defendants’ theory, on the other hand, was that while the pacemaker lead did appear to be in one layer of the heart, it did not appear to have perforated the pericardium. Dr. Jones testified that certain criteria had to be met in order for him to report a perforation, one of which was that the pericardium had to be perforated. Dr. Jones testified that he did not report a perforation here because that criterion was not met.

At trial, defendants used an expert witness who was a highly credentialed radiologist. During direct examination, the expert testified that “Dr. Jones’s preliminary report complied with the standard of care in every respect.” He also testified that “Dr. Jones’s criteria for reporting a perforation of the heart by a pacemaker lead complied with the standard of care, and the fact that the pacemaker lead is not mentioned in Dr. Jones’s report is not a violation of the standard of care.”

On cross-examination, a somewhat confusing exchange occurred between plaintiff’s counsel and the expert. Plaintiff attempted to show that the expert’s deposition testimony contradicted his trial testimony, pointing out that the expert had insinuated during his deposition that if Dr. Jones had seen the perforation of the outer layer he would have reported it, but that at trial the expert testified that Dr. Jones’s criteria of not reporting a perforation of the outer layer was within the standard of care. The expert responded that “subsequent to this deposition and prior to the trial that was held previously, I did more research.” The expert further stated on cross-examination that he “did not have the knowledge at the time [of the deposition] to give a truly accurate answer of my opinion.” Moreover, regarding the appropriate standard of care the expert stated:

I have probably researched and written about the standard of care more than most radiologists. I have never before this case ever encountered anything that has anything to do with pacemaker leads. And so, therefore, I don’t believe there is any standard of care in the radiology community referable to this particular situation. That’s the only answer. So I don’t know. I don’t think anybody knows. The jury won’t know.

After the expert’s testimony, plaintiff moved to disqualify him. The trial court denied the motion, ruling that “the jury [would] decide.” Because the motion to disqualify should not have been made in the jury’s presence, the court instructed the jury that it should “determine the weight that should be given to [the expert’s] opinion, just like you would any other expert that testified, has testified, or will testify in this case.” After proof was closed, plaintiff moved to strike the expert’s entire testimony, arguing that he “totally disqualified his opinion.” The trial court again denied the motion. The jury found unanimously for defendants, and this appeal followed.

On appeal, plaintiff asserted that the expert’s testimony should have been stricken as being untrustworthy. Plaintiff argued that the expert’s “admission during cross-examination that he did not know what the standard of care required was an admission that the foundation of his opinion that Dr. Jones ‘fully complied with the standard of care’ was untrustworthy.”  The Court of Appeals rejected this argument.

The Court noted that the trial court, as gatekeeper, “should admit the testimony of a competent expert unless the party opposing the expert’s testimony shows that it will not substantially assist the trier of fact or if the facts or data on which the opinion is based are not trustworthy pursuant to Rules 702 and 703.” (internal citation omitted). “Once the minimum requirements are met, any questions the trial court may have about the extent of the witness’s knowledge, skill, experience, training, or education pertain only to the weight of the testimony, not to its admissibility.” (internal citation and quotation omitted).

In analyzing the defense expert here, the Court first recited his extensive credentials and qualifications, finding that “no one could challenge the fact that he is an eminent expert in the field of radiology[.]” Next, the Court looked at whether the expert admitted, as plaintiff asserted, that he did not know the standard of care at issue here. Looking at the testimony as a whole, the Court concluded that no such admission was made. The Court reasoned that the testimony “should not be considered in a vacuum but must be considered in light of the totality of [his] testimony regarding his knowledge of the applicable standard of care.” When considering both the direct and cross-examination at trial, the Court ruled:

We have concluded that when the totality of [the expert’s] testimony concerning the applicable standard of care is considered, his answers during cross-examination do not render his testimony untrustworthy. Instead, his answers go to the weight to be afforded his testimony, as the trial court correctly stated. …Although Plaintiff insists that [he] ‘admitted’ that he does not know the applicable standard of care, we believe the jury could reasonably construe [his] testimony on the specific ‘standard of care’ suggested by Plaintiff to be that [he] does not believe such a standard of care exists.

In addition to rejecting plaintiff’s argument that the expert’s testimony was untrustworthy, the Court also rejected plaintiff’s assertion that the expert’s testimony had a “likely injurious effect on the verdict” due to the expert’s “numerous accolades.” Accordingly, the trial court was affirmed and the jury verdict for the defendants was upheld.

While this case is somewhat fact specific, it seems to track past HCLA cases which note that expert witnesses are not lawyers and will not be held to some magic language requirement.  While expert testimony is required in an HCLA case, the appellate courts have stopped short of requiring perfect language from these medical professionals.  Instead, the courts view the testimony of the expert as a whole in determining whether the expert should be permitted to testify and trusts the jury to weigh the testimony accordingly.  Sometimes the applicable of this rule adversely impacts plaintiffs.  Other times it adversely impacts defendants.  But the rule, consistently applied,  is reflective of sound public policy.