Lawyer Monthly - January 2022 Edition

to influence the jury to believe their opinions as fact, but in every situation, the judge and jury have been able to come to the correct verdict. The process is not perfect, but I have confidence in the legal process regardless of whether I am an expert witness or a defendant in a malpractice claim. How has this experience given you a better understanding of the issues concerning expert witnesses in these cases? Being an effective expert witness starts with reviewing a case and thinking about what you would have done or said if you were in the same situation. If you believe that it is more likely than not that you could have missed the same finding, or you have seen competent radiologists miss the same finding, that creates a strong foundation for your opinions. Then you support these opinions with data and evidence-based guidelines when available. Our role as expert witnesses is to be unbiased and objective. We should not be acting as an advocate for the plaintiff or defendant. We should also be subject matter experts. Experts should turn down cases if they are not experienced with the type of study or disease process central to the malpractice case. Expert witnesses have a critical role as the bridge between medicine and lay people like attorneys, judge and jury. We must be effective educators, bringing the jury to a level where they can understand the medicine well enough to make their own decisions about which opinions are accurate and reliable. Medical experts have a tendency to fall prey to confirmation bias, which is when they specifically look for information that supports EXPERT WITNESS 55 JAN 2022 | WWW.LAWYER-MONTHLY.COM their opinion rather than searching for information that can be used to test the validity of their opinion. Experts who critically evaluate their opinions for flaws and weaknesses tend to be much better prepared for deposition and trial testimony because they have anticipated these issues. Those who do not typically become frustrated when faced with difficult questions and information that does not support their opinion. One of the most under- recognised yet important responsibilities of an expert witness is to hold other physicians accountable. A frustrating aspect of being in academic radiology is that leadership often does not want to address issues that relate to a lack of clinical competency. I have worked with radiologists who were not competent to practice clinical radiology, yet because they were academically productive with numerous papers and awards, or had significant grant funding, clinical issues were minimised or Our role as expert witnesses is to be unbiased and objective. We should not be acting as an advocate for the plaintiff or defendant. ignored. I have left practices because leadership would not address issues related to these types of radiologists. However, as an expert witness, I can use my background and experience to ensure that radiologists performing below the standard of care are addressed. Not every diagnostic error constitutes a breach of standard of care and there are certainly “understandable misses” that competent radiologists make; these are the cases I typically defend. But there are also radiologists who are not practicing safely or responsibly, and the courtroom is where they are held accountable. What could be done to ensure a better standard of expert witnesses in medical malpractice lawsuits? My first suggestion would be to ensure that radiology expert witnesses providing opinions in cases involving