DTCI: Do As I Say, Not As I Do

Jon L. Bucher

Michael F. Mullen

If you are practicing in the medical malpractice arena, you probably know that our Court of Appeals addressed an issue of first impression in the recently published opinion of Oaks v. Chamberlain, 92A04-1609-CC-2041. In this case, the court addressed whether a party can impeach an expert’s standard of care testimony by cross-examining that expert about his personal practice. The issue arose when a medical expert testified that the standard of care did not require a certain act; however, during cross-examination, the expert testified that—if he had been treating the patient—he would have performed the act he testified was not required. At the end of the day, the court held that, for impeachment purposes, a medical expert’s personal practice is admissible to attack the credibility of his standard of care testimony. This article will summarize and discuss that holding and suggest implications thereof.

How did we get here? A summary of Oaks v. Chamberlain

Facts and testimony that created the issue of first impression

The facts of the case involve the post-operative care provided by a general surgeon after the laparoscopic removal of the plaintiff’s gallbladder. On post-operative day four, the plaintiff’s colon perforated and the defendant general surgeon performed an emergency surgery to repair the perforation. The plaintiff survived but experienced additional complications that required subsequent treatment, surgeries and rehabilitation. Pursuant to Indiana’s Medical Malpractice Act, the plaintiff presented his claim to a medical review panel and then pursued the matter in state court. One issue was framed as whether the standard of care required the defendant to order post-operative X-rays, which were omitted in this case.

Both parties worked the case up for trial. In doing so, the plaintiff deposed general surgeon Dr. Wayne Moore, one of the defendant’s expert witnesses. During that deposition, Dr. Moore testified that, although the standard of care did not require the defendant to order post-operative X-rays, he (Dr. Moore) would likely have ordered such X-rays. This testimony would become the central issue of the ensuing appeal.

During trial, the plaintiff elicited testimony from two general surgeons who opined that the standard of care required the defendant to order X-rays of the plaintiff’s abdomen after surgery and that, because the defendant did not order such X-rays, he failed to meet the standard of care. The defendant called two of his own expert witnesses who testified that the defendant did not breach the standard of care. As one of the defendant’s expert witnesses, Dr. Moore testified that the standard of care did not require post-operative X-rays.

Outside the presence of the jury, the plaintiff made an offer of proof to show that, if Dr. Moore had been questioned on his personal practice, Dr. Moore would have testified that he would have obtained post-operative X-rays of the plaintiff’s abdomen. The plaintiff wanted to use Dr. Moore’s personal practice testimony to impeach the credibility of his ultimate opinion that the standard of care did not require X-rays. Per plaintiff, Dr. Moore’s personal practice testimony would not be used to establish the applicable standard of care. The defendant argued that Dr. Moore’s personal practice testimony could not be offered to either establish the standard of care or impeach the credibility of his opinion because Dr. Moore’s personal practice and standard of care testimony were not in conflict. The trial court agreed with the defendant and viewed Dr. Moore’s testimony as indicating that the standard of care required one thing and that he practiced “above what he believes the standard of care to be.” For a conflict to exist under these circumstances, the trial court believed Dr. Moore needed to testify that the standard of care required something be done (or not done) and that he practices in a way contrary to that standard. Put differently, the trial court believed Dr. Moore testified that he practices above the standard of care, not inapposite of that standard. The jury later returned a verdict in the defendant’s favor, which the plaintiff appealed.

The court’s analysis and resolution of that issue of first impression

On appeal, the plaintiff argued that the trial court’s exclusion of Dr. Moore’s personal practice testimony was an abuse of discretion. As we know, an abuse of discretion occurs when a decision is against the logic and effect of the facts and circumstances, or when the trial court has misinterpreted the law. Kosarko v. Padula, 979 N.E.2d 144, 146 (Ind. 2012).

After rejecting the defendant’s waiver argument, the court turned to the issue at hand. The court first emphasized the utility of cross-examination to attack a witness’s credibility. Indeed, the court cited to several cases that tout the efficacy of cross-examination, including the U.S. Supreme Court case Watkins v. Sowders, 449 U.S. 341, 49 n.4 (1981), which described the process as “the device best suited to determine the trustworthiness of testimonial evidence” and “the greatest legal engine ever invented for the discovery of truth.” (quoting with approval 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974)).

The court then noted an emerging trend among Indiana’s sister states that favors the admission of an expert’s personal practices for impeachment purposes. The court cited appellate cases from Arizona, Colorado and Georgia that determined that an expert’s personal practice testimony is relevant both to determining the standard of care and in assessing the expert’s “credibility as an expert witness by suggesting that his personal practices differ from the standard of care he espoused.” Smethers v. Campion, 108 P.3d 946, 955 (Ariz. Ct. App. 2005); Wallback v. Rothenburg, 74 P.3d 413, 416-17 (Colo. Ct. App. 2003); Condra v. Atlanta Orthopaedic Group, P.C., 681 S.E.2d 152 (Ga. 2009). Again, this situation typically arises when the expert testifies that his personal practice is “above and beyond the minimum standard of care.” Jaynes v. McConnell, 358 P.3d 632, 638 (Ariz. Ct. App. 2015). The defense bolstered its argument to exclude Dr. Moore’s personal practice testimony with a Missouri appellate case, which our court acknowledged but ultimately rejected in favor the position taken by the majority of states that have addressed this issue. Thus, the court held 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 court then turned to the testimony provided by Dr. Moore and found that, since there was a conflict between his personal practice testimony and his standard of care testimony, the trial court erred in excluding the personal practice testimony for impeachment purposes. While the trial court believed Dr. Moore’s testimony stood for the proposition that he practiced “above the standard of care,” the appellate court reviewed the record and determined that there was no evidence that Dr. Moore would have ordered an X-ray to go “above the standard of care.” The Court of Appeals disagreed with the trial court’s conclusion because the record revealed Dr. Moore testified only that he would have obtained an X-ray—he did not give the reason he would have done so. Although the court determined that Dr. Moore’s personal practice testimony was relevant and admissible because his testimony conflicted, the opinion took the analysis one step further and held that, even if there was no conflict and Dr. Moore testified that he would go “above the standard of care,” that this would also have been relevant and admissible. (The Court of Appeals also rejected the defendant’s argument that Dr. Moore’s personal practices testimony should be excluded under Indiana Rule of Evidence 403 because its probative value was substantially outweighed by its potential to confuse the jury. The defendant argued that this may lead to the jury believing the evidence was offered to establish the standard of care and not just for impeachment. The Court of Appeals rejected this in light of the deference afforded to jurors.)

The court did limit the reach of the Oaks holding by stating that it “need not address the separate issue of whether an expert’s testimony about personal medical practices is relevant to what the standard of care might be since” the plaintiff did not raise that issue.

Since this opinion is so recent, it remains to be seen whether the defendant will petition the Indiana Supreme Court for transfer. Presuming the Oaks holding remains unchanged, attorneys practicing in the area of medical malpractice should be aware that their experts’ practices will likely come into evidence if those practices differ from his or her standard of care testimony.

What, if anything, will change?

So, what? That is the question attorneys not specializing in medical malpractice are likely asking themselves. Is the Oaks ruling limited to cases that involve only a medical standard of care? Probably not is the best answer we can give. In Oaks, the court referenced two cases that addressed the use of personal practice testimony when raised in non-medical-malpractice claims. The court concluded that, per these cases, industry custom and practice is not admissible to establish the standard of care, but may be relevant to the standard of care, once that standard has been established by other means.

In Hagerman Construction, Inc. v. Copeland, 697 N.E.2d 948 (Ind. Ct. App. 1998), a construction worker died after falling through an uncovered opening while working on a college basketball arena. After a four-day trial, the jury found the general contractor, Hagerman, was 100 percent liable and awarded damages; the subcontractors were not liable. Notably, during trial, the plaintiff called two experts and three construction workers who testified to a custom and practice throughout the construction industry regarding the duty to cover openings such as the one that led to the plaintiff’s fall. Specifically, the three construction workers testified that, based on their experience with other projects, the general contractor (in this case, Hagerman) is the party typically responsible for covering such openings. On appeal, Hagerman argued that this testimony was irrelevant and unfairly prejudicial. The court affirmed the trial court’s decision to admit the custom and practice testimony because “conduct of other persons in substantially similar conditions may be relevant to the reasonableness, under the circumstances, of a particular individual’s acts or omissions” (citing Walters v. Kellam and Foley, 360 N.E.2d 199, 214 (1977). Thus, the court reasoned, it was proper to admit evidence of others’ conduct for the jury to consider when determining Hagerman’s contractual duty of safety.

In Van Duyn v. Cook-Teague Partnership, 694 N.E.2d 779 (Ind. Ct. App. 1998), the court evaluated whether custom and practice evidence could be used to establish the duty of care a laundromat owed a customer. The case involved a customer who was abducted and killed while using the defendant laundromat late one evening. The plaintiff estate claimed the defendant negligently operated the laundromat and that this negligence was a proximate cause of the decedent’s death. The plaintiff claimed a duty to protect the decedent from harm arose from the laundromat’s employment of a night-shift janitor who tended to the facility on most nights; based on this custom and practice, the decedent relied on his presence for her safety. The trial court granted summary judgment in the defendant’s favor on the issue that the laundromat owed no duty to the decedent. The plaintiff appealed that judgment. In affirming the trial court’s decision, the court determined that evidence of a custom or practice may be relevant on the standard of care after the law has already recognized a duty of care; however, a custom and practice cannot be used to establish a duty in the first place.

These cases suggest that Oaks, while decided in the context of medical malpractice, will not change the utility of personal practice testimony for impeachment purposes in other areas of practice. In situations where the law has recognized a duty of care (by expert testimony or otherwise), evidence on an industry standard or custom and practice is likely admissible. Thus, attorneys practicing civil litigation, regardless of the specialty, should prepare their experts for the inevitable cross-examination regarding the reasons their personal practices do not conform to the purported standard of care and whether this affects what they believe the standard of care to be.•

The authors are associates at Schultz & Pogue, LLP. Mr. Mullen’s practice focuses on defending health care providers and the Indiana Patient’s Compensation Fund. Mr. Bucher’s practice centers on the area of general liability defense, where he defends individuals and businesses in auto and premises liability suits. The opinions expressed in this article are those of the authors.