Expert Witness Testimony on the Basis of Clinical Experience Could Pose Problems

by | Published on Jun 5, 2017 | Medical Record Review

Physicians may be called upon to provide testimony as medical records review expert witnesses in diverse cases because these reviews serve as an effective means of evaluating the history of patients and ensuring whether the right form of care is properly utilized by each physician involved. Expert witnesses utilize medical review solutions to analyze the medical facts, and testify about the pain and suffering documented in the medical records of patients involved in personal injury, products liability, medical malpractice, toxic torts, and workers’ compensation litigation. This testimony must be objective and readily available and is very significant because unbiased and scientifically valid testimony can help in the discussions of a particular case and also establish for the record appropriate standards of care.

In any litigation belonging to the categories mentioned above, it is required to identify the materials the experts consider to form their opinions. One of the guidelines physician expert witnesses need to follow is that they should be prepared to reveal whether their testimony is based on personal experience, specific clinical references, or generally accepted opinion in the specialty or sub-specialty field. If they are providing the testimony partly on the basis of their experience treating patients who are not involved in the specific litigation, it may create a problem. This is the message that a recent decision from the US District Court for the District of New Jersey seems to convey. In this case, the Court ruled that the physician expert witnesses produce those patients’ records to the other side as part of the rules governing expert discovery.

The product liability case in point is one involving anti-hypertensives that contained olmesartan. This prescription drug is alleged to have caused sprue-like enteropathy symptoms in the plaintiffs. The expert witnesses in this case were a gastroenterologist and a pathologist affiliated with a major academic medical center in NY. They provided expert reports on behalf of the plaintiffs, and their testimony was partly based on their own experience with patients. They referred to the fact that they reviewed the charts of some of their other patients who took olmesartan, and concluded that this drug may indeed have something to do with the enteropathy symptoms in the plaintiffs.

However, they failed to produce the relevant medical records of the patients they were referring to because the records were owned and maintained by their employer, the academic medical center. The Court analyzed the question of the medical charts’ discoverability under the rule governing a litigant’s obligation to disclose materials considered by medical experts in forming their opinions. It ruled that the patient records reviewed by the experts were discoverable and should be produced subject to redaction so that all personal identifying information is removed. Keeping in view the fact that the medical experts may be unable to produce the records, the Court directed in the alternative that the experts submit affidavits confirming their inability to produce the records, and providing information on who could be served with a subpoena for their production. The experts provided affidavits explaining their inability to produce the concerned medical records since these were owned by their employer. They also submitted a letter from the medical center’s (their employer) office of general counsel that confirmed the experts’ inability to produce the records. It is expected that the defendants must have subpoenaed the institution and obtained the records from it, though the docket doesn’t show further motion practice regarding this issue.

As providers of medical record review for attorneys, we consider a case such as the above highly significant because it highlights some real issues that may crop up when the clinical faculty of an institution are called upon as medical expert witnesses. While the American College of Physicians strongly encourages its members and other physicians in the administration of justice, physicians who act as expert witnesses could find their hands tied when it comes to requirements such as producing sensitive medical records. Taking this case as an example, institutions should have appropriate policies as regards their clinical staffs’ ability to access medical records for non-clinical purposes such as serving as expert witnesses. These policies should be clearly made known to their staff. As for physicians functioning as expert witnesses, they should consider the implications of relying on protected medical records to form and document their opinion. Lawyers who engage medical experts also have an important role to play – they should provide guidance to the expert regarding what materials will have to be disclosed if the expert relied on patient records.

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