COA: Expert should have testified about personal medical practices

In a case of first impression, the Indiana Court of Appeals ruled a patient in a medical malpractice case should have been able to cross-examine the medical expert about his personal medical practices.

David Oaks filed a malpractice complaint after he suffered a perforated colon which required surgery to repair, the removal of his spleen and a long rehabilitation that included more operations. He argued that his surgeon Timothy Chamberlain should have ordered an X-ray after the surgery to remove his gallbladder which would have shown a problem in the colon.

At trial in Whitley Circuit Court, Chamberlain offered the testimony of Wayne Moore, M.D., who testified that the defendant did not violate the standard of care when treating Oaks. Outside the presence of the jury, Oaks elicited testimony from Moore that he would have obtained a post-operative X-ray.

However, the trial court did not allow the jury to hear those statements by Moore. The jury returned a verdict in favor of Chamberlain.

Oaks appealed, raising the question of whether cross-examination of an adversary 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.

Arguing the Court of Appeals should allow evidence of personal medical practices to attack testimony about the standard of care, Oaks and amicus curiae Indiana Trial Lawyers Association noted a majority of other states to address this issue have held an expert can be impeached with his personal practices when they differ from the accepted practices.

Chamberlain maintained Moore’s testimony should have been excluded because it only showed that the expert would have gone beyond the common medical treatment. It did not conflict with what he told the jury about the standard of care.

The Court of Appeals reversed the trial court and remanded the case for a new trial in David Oaks v. Timothy R. Chamberlain, M.D., 92A04-1609-CC-2941. The judges found Moore’s testimony was incomplete because he only stated he would have gotten an X-ray but did not give a reason why he would have done so.

“Dr. Moore’s testimony about his personal practices was in conflict with his testimony on the standard of care,” Judge Edward Najam wrote for the court. “Therefore, he personal practice testimony was relevant and admissible. … The disparity in Dr. Moore’s testimony was relevant for impeachment purposes.”

Chamberlain countered with two additional arguments.

First, he asserted even if personal practices testimony was relevant, it should have been excluded under Indiana Rule of Evidence 403. The testimony’s probative value was substantially outweighed by its potential to cause unfair prejudice and confuse the jury.

Second, even if it was an error to exclude testimony about Moore’s personal practices, he contended the error was harmless.

The Court of Appeals disagreed with both arguments.

The appellate panel found the jury is capable of understanding that the standard of care and a witness’s credibility about the standard of care are not one and the same. Also, it ruled that the exclusion of Moore’s personal practices testimony had a probable impact on Oaks’ substantial rights.