In a case where a radiologist misses a lung cancer the only information he might have at the time is "patient has cough". Once the cancer is diagnosed and said patient sues the radiologist for negligence, does the patient's expert radiologist have more information when reviewing the original image? If so, surely there is hindsight bias which should deem the evidence unreliable.
Your issue is still not completely clear and properly contextualised. Nevertheless, within the constraints of my limited comprehension of the puzzle as formulated I proceed to hazard the following opinion:
1. Assuming you mean that the supposed negligent radiologist is the defendant to the suit by the patient then the radiologist cannot be a witness for the claimant or plaintiff. Even, where the suit was mounted as a vicarious liability against the employer hospital of the radiologist, the radiologist can still not be a witness called by the claimant patient. It must be noted that the court can question any witness regardless oF which party called. Thus if a patient decides to lie under oath when so questioned by the court, the court will not attach significant weight to his evidence or in worst case scenario the lying witness will incur criminal sanctions under the offence of perjury or contempt of court.
2. The radiologist whether acting as co defendant or witness for the hospital defendant may not necessarily have informational advantage over the patient and his own appointed radiologist witness since by law in England and Wales and other jurisdiction the patient is entitled to have access to medical records or data on him
3. On the other hand if your concern is with the Bolam test under English law which relies on opinion of responsible medical professionals then I see where your bias worry is emanating from. Even then it appears that in recent times the courts are becoming more critical of such opinions
There is no universal answer to your question. The situation can be very different, depending on the jusrisdiction.
A. There are jurisdictions, where expert witnesses could be anyone, having the necessary expert knowledge. On the other hand, there are also jurisdictions, where there are some formal requirements for admissibility of expert witnesses. E.g. - most jurisdictions in continental Europe have a formal list of expert witnesses usually maintained by ministry of justice or similar goverment body from which expert witness could be freely choosen by both prosecution and defense. Usually there is some legal norm which set obligation for an expert witness to inform about possible lack of impartiality due his/her possible with relation to the case or persons involved (patients, hospitals, even prosecutor or judge)
B. To make a expert witness statement in any medical malpractice case, the only correct approach is to take into account only these information which have been available to the physiacian in question at the given time (ex ante approach). No information which has been revealed or provided at the later stage shall be taken into accout. The expert witness shall always give his or her opinion based on the fact available at the critital time.
C. I took part in similar case in the past (mostly in stategy setting team) involving cancer and evaluation of X-ray scans. Once we did a following controlled experiment prior to the ligitation itself - the X-rayxs were provided to 4 independent x-ray specialist. Two have been informed about the final patient's diagnosis while the other lacked this piece of information. Physicians with the additional information were able to set diagnosis of cancer or suspiction thereof, while two physiacians lacking this critical piece of information concluded the X-ray to be "without substantial pathology"
Thanks Peter, i am finishing a paper on prevelence expectation and designing an experiment regarding hindsight bias with special reference to litigation and expert witness using chest radiographs. I would be very intetested in your paper/data regarding the independent witnesses.
Steve
I think a lot of lawyers grapple with this problem. I have attached an article which found very helpful. It was published in the NSW Bar News by Garth Blake SC and Phillipe Doyle Gray. I recommend it.
Ideally a medical expert witness would have only the information available to the treating physician at the time of consultation. However, in reality the outcome is always known when a malpractice case is launched, and experts for both sides know the outcome. An ethical witness should restrict consideration to those facts that either were known or should have been known to the treating physician at the time of the consultation when rendering an opinion about the reasonableness of a certain action or inaction. However, hindsight bias can of course be instrumental, and often is influential. It is the job of defense counsel to try to put this into perspective for the decisionmaker. However, in a jury system of jurisprudence, almost all expert testimony is admitted, and the lay jury is expected to be able to interpret testimony and determine fact from bias. In the U.S. no special qualifications exist for medical experts in many jurisdictions, for example a technician or nurse can testify against a physician as an expert and vice versa, a specialist can testify for/against a generalist. The judge will make the determination as to expertise on a case by case basis. Expert witnesses in most jurisdictions do not even need to prove that they have had the training or experience (for example a medical degree or specialty training) that they claim to use in arriving at an opinion. Nor do they need to defend their sometimes astronomical fees. Again it is up to opposing counsel to expose any misinformation, and for the jury to judge. It's a poorly regulated system.
Article Expert Witness Testimony: The Ethics of Being a Medical Expert Witness
Thanks for that Louise. I am just awaiting ethics approval for a research project to investigate bias in malpractice litigation for misdiagnosis in chest images.
Hi, Steve, we are doing such a study now, building on the ideas in this review article. Perhaps contact me outside this system, and we can discuss.
-ctr
http://www.jacr.org/article/S1546-1440(14)00248-8/abstract
Hi Chris,
I am unfamiliar with the concept of "Expert Witness Binding". Could you please provide me with access to the cited article? Thanks!
lba
See attached. As well as the two links.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1416943
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884765
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