Why medical liability expert witness must practice same subspecialty

Tanya Albert Henry , Contributing News Writer

It would be odd for a court to let a pediatric oncologist and a pediatric rheumatologist testify against a pediatric neonatologist simply because they all share an umbrella board certification in pediatrics.

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Although the three specialists were all first certified by the American Board of Pediatrics, they each practice a different type of medicine.

The Litigation Center of the American Medical Association and State Medical Societies and the Michigan State Medical Society (MSMS) tell the Michigan Supreme Court that the concept is no different when it comes to letting a neuroradiologist testify to the standard of care for a diagnostic radiologist in a medical liability lawsuit.

Finding otherwise would upend expert testimony in medical liability lawsuits. It would unfairly allow physicians who aren’t of the same subspecialty—and don’t possess accurate knowledge about the standard of care a defendant physician should have met—to testify against that physician.

A diagnostic radiologist and a neuroradiologist are both board-certified in diagnostic radiology, but a neuroradiologist “possesses a certificate of added qualification in neuroradiology and devotes the majority of his professional time to the practice of neuroradiology.” In addition, the physicians’ “real world practice experiences are not the same,” the AMA Litigation Center and MSMS told the court in a joint amicus brief they filed in the case of Stokes v. Swofford in support of the defendant physician.

“As plainly understood, a defendant who specializes in diagnostic radiology and an expert who specializes in neuroradiology do not specialize or devote the majority of their professional time to the ‘same’ specialty. A contrary conclusion would turn the definition of ‘same’ on its head,” the brief tells the court.

That is why physicians are asking Michigan’s highest court to reverse an appellate-court decision that allowed a neuroradiologist to be the plaintiff’s expert in a case against a diagnostic radiologist. They are asking the state high court to reinstate the trial court’s ruling that the only relevant specialty is diagnostic radiology.

The appellate court’s published decision “will have far-reaching and untoward repercussions in the medical malpractice arena,” the amicus brief tells the Michigan Supreme Court.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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The question before the Michigan Supreme Court stems from a lawsuit that patient Linda Horn’s family filed after the woman died. Horn, who had a history of pseudotumor cerebri and suffered frequent headaches, had a shunt implanted in her head. She went to the emergency department in 2013 with a severe headache, nausea and vomiting. A CT scan was ordered.

Diagnostic radiologist Michael J. Swofford, DO, interpreted the scan as the result of a malfunctioning shunt. An emergency physician performed a lumbar puncture, but Horn’s condition worsened and she died two days later. Horn’s family sued Dr. Swofford and others, attaching an affidavit from their expert neuroradiologist, and asking the court to confirm that neuroradiology was the one most relevant specialty or subspecialty for qualifying an expert.

The trial court denied that request, saying the one most relevant specialty in the case was diagnostic radiology. When Horn’s family appealed the decision, an appeals court reversed the trial court decision and said that a neuroradiology expert was qualified to testify against a diagnostic radiologist interpreting a cranial CT scan.

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The brief outlines established Michigan legislative and case law that requires physician expert witnesses to have the same specialty as the defendant. The current law doesn’t focus on the task that was performed during the alleged malpractice, the AMA and MSMS brief tells the court. Instead, it focuses on the physicians and the physician’s specialty.

“Inexplicably, the court held that Dr. Swofford, a diagnostic radiologist, was practicing neuroradiology when he interpreted the CT scan and should be held to the same standard of care as a neuroradiologist,” the brief says. “The court offers nothing for this holding, which violates [the current law] and reverts back to the 1986 statutory language.”