This article was inspired by a SIR 2024 session: Demystifying Malpractice. To read more about medical malpractice in IR and best considerations, IR Quarterly recommends: A Review of Professional Liability in IR: Sweeping the Mines, published in the Journal of Vascular and Interventional Radiology.
Interventional radiology malpractice suits tend to look different than the average medical malpractice case. Part of this is due to the nature of IR practice: IRs frequently provide care for the sickest patients in hospitals, often for those who are not surgical candidates.1 If an adverse event occurs that requires surgery, there may be no resource or salvage care for late-stage patients, which can push treatment boundaries. IRs often work as part of a large multidisciplinary team taking care of these complex patients. In addition, there isn’t always a widespread understanding of what post-IR procedure aftercare looks like.
When it comes to malpractice suits, it’s always best to have an expert witness who understands the nuances and challenges of interventional medicine. But just as there is a lack of IRs providing insurance denial reviews, there are few IRs serving as medical malpractice experts. However, because IRs are familiar with working in many areas of medicine and dealing with vulnerable patients, they can make excellent medical experts.1
Rex Pillai, MD, has served as an expert witness for medical malpractice cases for several years. According to Dr. Pillai, this can be a fruitful opportunity for IRs looking to get involved. Dr. Pillai shares his experiences and lessons learned on the stand.
What is the role of a medical malpractice expert witness?
Rex Pillai, MD: A medical malpractice expert witness plays a crucial role in legal cases involving claims of medical malpractice. Their role functions similarly whether they are representing the defendant or the plaintiff. The principal objectives of a medical expert witness are as follows
- Evaluating standards of care: The expert witness assesses whether the medical professional in question adhered to the accepted standards of care within their field. They determine if the actions taken (or not taken) were consistent with what a reasonably prudent professional would have done under similar circumstances.
- Providing specialized knowledge: They offer their specialized medical knowledge to help the court understand complex medical issues. This is essential for judges and juries who typically do not have medical training.
- Reviewing case details: The expert witness thoroughly reviews all relevant medical records, case files and other pertinent documents. They provide a detailed analysis of the patient's medical history, treatment received and the outcomes.
- Formulating opinions: Based on their review, the expert witness forms an opinion about whether malpractice occurred. They consider if there was a breach in the standard of care and if so, whether it directly caused harm to the patient.
- Testifying in court: The expert witness presents their findings and opinions during depositions and at trial (if required). They explain medical concepts in layman's terms and provide testimony that supports or refutes the claims of malpractice.
- Assisting with case strategy: They may work with legal teams to help develop case strategies. This can include identifying strengths and weaknesses in the case, suggesting lines of questioning for depositions and cross-examinations, and helping the legal team prepare witnesses.
- Impartiality and credibility: The expert witness must maintain impartiality, providing objective opinions based on evidence. Their credibility and qualifications can significantly impact the case, as they need to convince the court of their expertise and the validity of their opinions.
What qualities make someone an expert witness?
RP: A good expert witness is someone with experience and knowledge in the subject matter. Someone without relevant experience would not be a good witness. For example, a pathologist who has never set foot in the operating room would not be a valuable expert witness in a laparoscopic cholecystectomy case. Additionally, having an interest in working with legal professionals, plaintiffs and defendants is crucial. If this type of work does not interest you, you will often find yourself wondering why you are reading thousands of pages of evidence and spending hours discussing cases and writing opinions.
How did you get involved?
RP: I was appointed to a medical malpractice review committee at my institution. I joined other physicians from various specialties to review medical malpractice cases pending against our institution. Our role was to provide the legal team with insights into these cases and evaluate whether the standard of care was met.
Based on my experience in this area, law firms periodically reached out to discuss cases related to vascular and interventional radiology. The more legal work you are involved in, especially if you are considered an expert in the field, the more frequently you tend to be contacted.
What was your experience like?
RP: The experience varies depending on the length and complexity of the cases you work on. Some cases only require a brief meeting with the legal team that hired you to discuss the matter. Others involve extensive chart reviews and opinion writing. A few cases go the distance, requiring you to participate in depositions and testify in court. If you haven’t done that before, it can be a unique and potentially stressful experience, as it is unfamiliar to most physicians. The opposing attorneys will try to win their case and discredit you, so you need to be well prepared. Ultimately, if you know the subject matter well, you should feel confident that you can answer any questions asked of you.
How do you prepare to testify?
RP: I review the case materials thoroughly to ensure I am familiar with all of the details. I also make sure I am aware of all the work product materials prepared by the other expert witnesses and myself.
What type of questions are you asked during the trial?
RP: You can be asked anything that pertains to the case and your background as an expert witness. You will be questioned about whether the medical professional involved met the standard of care, was negligent or potentially caused harm to the patient. You may even be asked questions outside your scope or knowledge base. There are often several lines of questioning considered "off limits" from the onset of the testimony. These restrictions are typically outlined by both legal teams at the beginning of the session.
How do you remain impartial and unbiased?
RP: You need to remember that you are providing a review of the case based on the established standard of care in your specialty. If you have a bias, you should disclose it early and recuse yourself. Remember, you are a physician, not a lawyer. You are not trying the case or working to win it for your client. The cases’ merits and judgments will be determined by the legal system.
Many expert witnesses stray by treating depositions and testimonies as if they were guest speakers or participating in a panel discussion. If you go on tangents, provide anecdotal opinions or criticize a case because it wasn’t done stylistically the way you would have, you are not being an effective expert witness.
How do you stay composed during intense cross examination?
RP: In my opinion, the best approach is to listen to the questions intently and answer them as directly as possible, with as much certainty as you can provide. Avoid giving more information than what is asked unless you feel it is integral to your answer. It is also important to wait a moment before responding, as opposing counsel may want to object to the line of questioning before you start to speak.
As a result of your experience as a witness, have you altered your own practice standards?
RP: Not particularly. I think most of us try to practice based on accepted standards and available evidence. Much of what we do in medicine is already shaped by legal implications. It is helpful to remember that the legal standard of care is defined by what a reasonably prudent person would do in similar circumstances. This broad definition allows the legal system flexibility to cover various types of practices, rather than being limited to what is done in academic institutions with unique access to resources.
Do you have advice for other IRs interested in doing this?
RP: As with many aspects of our field, we need more IRs involved in this line of work. If you work at a large medical group or academic center, reach out to your in-house legal team to see how you can get involved. The work is rewarding and often a natural extension of your passion for vascular and interventional radiology.
1. Kumari D, et al. A review of professional liability in IR: Sweeping the mines. JVIR. 2023; 34(2):157-163.
