Missouri Court of Appeals Holds Trial Court Properly Refused To Allow Plaintiff's Counsel to Cross-Examine a Defense Expert on Subject Matter Outside His Area of Medical Expertise
In Dalbey v. Heartland Regional Medical Center, the Missouri Court of Appeals, Western District, affirmed a defense verdict in favor of an emergency room doctor and hospital in a medical negligence suit alleging that the doctor failed to diagnose a brain aneurysm that ruptured, hemorrhaged, and caused permanent brain injury. At the conclusion of a nine-day jury trial, the plaintiff’s attorney asked the jury to consider more than $9 million in damages.
On appeal, one of the plaintiff’s claims of error was that the trial judge improperly prohibited his attorney from cross-examining a defense neuro-critical care expert about his opinion whether the emergency room doctor breached the standard of care. But the Court of Appeals applied Missouri Supreme Court precedent and ruled that although a physician practicing one specialty might be qualified to offer a standard care opinion concerning the conduct of a physician practicing in another specialty, a trial court need not admit testimony from a physician expert who denies knowledge of the standard of care for another specialty practice area.
A brief synopsis of the underlying medical events provides context for the trial and appellate issues that followed. During the ER encounter at issue, the ER doctor diagnosed the plaintiff with gastritis or a peptic ulcer, prescribed Prilosec, and discharged him with the recommendation to pursue a follow-up endoscopy. The plaintiff reported a history of nausea, decreased appetite, and passing out after vomiting blood. On physical exam, the ER doctor found plaintiff neurologically normal, and he concluded plaintiff fainted because of a vasovagal episode triggered when he saw his own blood after vomiting.
Less than one month later, the plaintiff returned to the same hospital by ambulance with severe headache and altered mental status. While in the ER, he suffered a seizure. The same ER doctor was on duty and ordered a head CT scan that revealed a ruptured intracranial aneurysm with intracerebral hemorrhage. The plaintiff was life flighted to a tertiary care center for neurosurgical intervention.
The central claim at trial was that the ER doctor was negligent in failing to order a head CT scan on the first encounter, as earlier diagnostic testing would have revealed the brain aneurysm and/or a small bleed, and timely treatment would have prevented the rupture and large hemorrhage that followed. The claim against the hospital was based solely on vicarious liability for the ER doctor’s alleged negligence.
The defense case included testimony from a neuro-critical care expert, not on the standard of care for the ER doctor, but in support of the defense position that the aneurysm had not likely ruptured until the time of the second encounter and was not preceded by a bleed that could have been identified on CT imaging during the first encounter. The neuro-critical care expert testified the plaintiff’s presentation during the first encounter, including a history of syncope and vomiting blood, a normal neurological examination, and no report of pain, was not consistent with an active brain hemorrhage.
Plaintiff’s counsel attempted to cross-examine the neuro-critical care expert to elicit standard of care opinions against the defendant ER doctor. Defense counsel objected, contending that the expert practiced in a different specialty area than the defendant ER doctor, the defense had not disclosed the physician as an expert on the standard of care for an ER doctor, and that plaintiff's counsel's questioning was outside the scope of the defense’s direct examination. The court permitted plaintiff's counsel to conduct a voir dire examination outside the presence of the jury, during which the expert testified he had no intention of offering standard care testimony, as he was unfamiliar with the standard care for an ER doctor. Ultimately, before the jury, the neuro-critical care expert admitted that, if consulted during the first encounter, he would have ordered a head CT, assuming the plaintiff’s version of events were true (which differed significantly from the defense’s description as documented in the medical records).
Citing Missouri Supreme Court case law, the Court of Appeals held the trial court did not err in prohibiting plaintiff’s counsel from cross-examining the defense expert about the standard of care for an ER doctor. The rule is that while a physician practicing in one specialty might be qualified to offer a standard of care opinion concerning the conduct of a physician practicing in a different specialty area, this does not mean the trial court is required to admit testimony from a physician, like the neuro-critical care expert here, who denies knowledge of the applicable standard of care. The court found the plaintiff suffered no prejudice because the jury did not hear the expert’s “expression of agnosticism.” The court permitted plaintiff's counsel to elicit testimony from the expert that, if plaintiff’s version of events were true, he would have been concerned about an intracranial problem and potential hemorrhage and would have undertaken further neurological investigation. But the jury apparently did not agree with the plaintiff’s version of the underlying facts.This case demonstrates some of the practical considerations involved in presenting expert medical testimony at trial from multiple experts in different specialty practice areas. For example, it is not difficult to find an expert witness who is willing to testify outside his/her own specialty area and criticize another physician with another specialty board certification, which can raise credibility questions. However, even when a defense expert is unwilling to testify outside his practice “lane,” there is still a danger that an effective plaintiff attorney could cause the witness to concede points that are not helpful to the defense position at trial. This is particularly true when, as here, the expert has additional specialty training and more narrowly focused experience (for example, with neurological issues) beyond that of the defendant physician whose practice is more generalist (such as emergency medicine).