The initial reactions of a neurosurgeon to a medical liability lawsuit include a period of depression and withdrawal. It is important that this period of negative, nonproductive psychological inhibition must be short because it hinders the constructive contributions the neurosurgeon can make to the defense [8]. A significant contribution of the neurosurgeon can be the analysis of the qualifications of the plaintiff expert and the nature of his testimony, and advising defense counsel of the validity of these offerings. After all, the neurosurgeon knows as well as or better than anyone what a neurosurgeon does. Through an analysis of 2 medical liability cases, the opinions of the respective courts will be used to illustrate how the law addresses these questions and how the neurosurgeon can contribute meaningfully to this issue.
The suit was brought by the estate of the patient, who underwent burr holes for bilateral chronic subdural hematomas followed by tube drainage. During the postoperative period, the tubes became disconnected from the collecting system; the patient developed pneumocephalus, under tension, and died. The plaintiff named, as an expert in postoperative neurosurgical care, a psychiatrist who had participated in a number of hospital-based peer review matters in which postoperative care was the issue.
The patient was brought to the ED after experiencing an assault. Although she had been rendered briefly unconscious, no CT scan of the head was obtained. The ED physicians who examined her recommended overnight observation, but she hesitated. They relented; and she went home with friends, who later left her by herself. The next day when she did not report to work, she was found unconscious and brought to the ED where she died. In the lawsuit, the plaintiff produced as an expert an ED physician who testified that if a CT scan had been performed, she would have been admitted to the hospital and, with appropriate treatment, survived.
4. Analysis
A frequently followed standard for medical expert witnesses in the past is the same-school principle [4]. That is, witnesses of the same school of medical teachings are qualified to testify regarding each other's practice. Two allopathic physicians, each with medical degrees and licenses, such as an anesthesiologist and a hematologist, could testify as to the standards of practice of each other. However, an orthopedist could not testify regarding the practice of a chiropractor, being of a different school. As a result of cases like the 2 presented here, with interpretation of relevant statutes, the law has changed. Texas statutes require that, for an expert to testify regarding the practice of another practitioner, the expert must demonstrate, among other credentials, that he “is qualified on the basis of training or experience to offer an expert opinion regarding…accepted standards of medical care” [6].
The Tomasi court questioned the qualifications of the psychiatrist to address postoperative neurosurgical care because there was no demonstration of specific experience in that field. It found “[t]he only mention of neurology [in his resume] is his status as a diplomate of the American Board of Psychiatry and Neurology, but [his] status could be based merely on his experience in psychiatry.” It went on to say that it may be possible for a psychiatrist to work closely enough with neurosurgeons that in time he could become qualified to render opinions “on the standards applicable to postoperative care following neurosurgery. But such experience had not been demonstrated in court.”
In the Broders case, the ED expert demonstrated convincingly that he had experience in evaluating patients with head injuries in the ED and worked with neurosurgeons in admitting them to the hospital. However, neurosurgical testimony contradicted his opinion that the patient would have survived if admitted, stating that because of the nature of her injuries (diffuse axonal), she would not have survived even if she had been admitted the night she came in to the ED. The court did not accept the testimony of the ED physician because he could not show he had personal, hands-on experience comparable to that of neurosurgeons in the subsequent treatment and ultimate determination of outcome of similar patients.
The Broders court declared, in an opinion echoed by the Tomasi court, that “given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization.” It went on to hold that “when a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields.” Indeed, a separate court permitted an anesthesiologist to testify opposite a hematologist about incidents of coagulation involving intravenous catheters because of his experience with catheters in his practice [5].
5. Conclusions
According to the American Board of Neurological Surgery and other organizations of the specialty, the practice of neurosurgery involves the medical and surgical treatment of diseases of the nervous system to include the brain, spinal cord, and peripheral nerves along with its bony support and its blood supply [1]. It is a major task of the defendant neurosurgeon and his expert to educate the defense attorneys as to this definition. It is also a significant task of the neurosurgeon to analyze the plaintiff's team of experts carefully, using that definition, to provide the attorneys with the knowledge of any deficiencies in the experience of these experts. There is a great deal of overlap between the practice of neurosurgeons and other specialists, but not necessarily an overlap in experience by individual “experts.” The defendant neurosurgeon and his experts are the most qualified in the case to know the distinctions and, with an awareness of the legal standards, can make a significant contribution to the defense by identifying those distinctions. As a final example, I was a legal consultant to a law firm representing a hospital in a spinal injury case. The plaintiff expert was a neurologist who testified he had managed more than 7000 spinal injury cases, including cervical spine, in the ED in his career. However, it was shown he was unaware of the term hangman's fracture and could not articulate its origin or describe the associated pathology. He was successfully impeached, to the benefit of the hospital's case.
One may argue that the above is inconsequential as far as the neurosurgeon is concerned because such advise and guidance should come from the attorneys. It may. However, neurosurgeons have found it not only useful but critical that they acquire knowledge and intellectual skills outside of the profession to comfortably control the environment in which they practice. Just as in the business of medicine, where neurosurgeons may be called upon to be presidents or managing partners of large practices [2], or heads of large hospital medical staffs, so it is necessary they become acquainted with the law that directly affects them in a medical liability lawsuit, and make use of it.
FULL TEXT