When Is A Medical Expert Qualified to Testify?

At 18 years old, Michelle Ayala was diagnosed with cancer. Doctors removed a 66-pound tumor from her abdomen. Evaluation of the tumor by pathologists at a Barrington hospital indicated that the mass was a borderline ovarian tumor without any stromal invasion, and chemotherapy was not performed.

Later, experts disagreed as to the type of cancer and the course of treatment required at that time.

About 18 months after the tumor was removed, Michelle was diagnosed as having a stage IV ovarian carcinoma, with the cancer having spread to her lungs and bone. She died at age 20.

Her mother sued the pathologist who failed to properly diagnose and timely treat her daughter’s tumor, which lead to the complications resulting in her early death.

At trial, plaintiff’s expert, Dr. Donald Goldstein, was not allowed to give his opinion as to the effectiveness of chemotherapy if it had been administered following the surgery to remove Michelle’s tumor.

Dr. Goldstein is a gynecologic oncologist who is board-certified in obstetrics and gynecology, is a surgeon at Brigham and Women’s Hospital, and works with cancer patients on an outpatient basis at Dana-Farber Cancer Institute, both in Boston. The court noted that he confers with three medical oncologists weekly to discuss various issues regarding his patients’ status and cancer therapies and the his part of the "joint decision" process as to what course to follow with them.

Defendants, though, had him barred from testifying as to the treatment issue, arguing that he was not a medical oncologist. The trial court directed a verdict in favor of the defendants, finding that Ayala had filed to prove that the defendants’ negligence was the proximate cause of her injuries and wrongful death.

On appeal, the court reversed and remanded, finding that it was an error to exclude that portion of Dr. Goldstein’s testimony.

In an 18-page opinion written by Justice Leslie E. South, the court found, "Dr. Goldstein’s lack of board certification in medical oncology and his reliance upon medical oncologists in determining a patient’s ultimate treatment went to the weight of his opinion, not to its admissibility." Ayala v. Murad, No. 1-05-0511 (1^st Dist., decided Sept. 12, 2006).

It is well-established in Illinois that, in order to prevail in a medical malpractice cause of action, a plaintiff must present expert testimony to establish that the deviation from the appropriate standard of care was the proximate cause of the plaintiff’s injury.

Here, the court reiterated long-standing Illinois precedent that "Whether the plaintiff’s medical ‘expert is qualified to testify is not dependent on whether he is a member of the same speciality or subspeciality as the defendant, but, rather, whether the allegations of negligence concern matters within his knowledge and observation.’" Id., citing Jones v. O’Young, 154 Ill.2d 39, 43, 607 N.E.2d 224 (1992).

The court cited another significant Illinois Supreme Court case that dealt with a general surgeon whose testimony about the reading of x-ray films taken during a patient’s hospitalizations had been limited at trial. Gill v. Foster, 157 Ill.2d 304, 626 N.E.2d 190 (1993).

In determining that the trial court had abused its discretion by limiting the surgeon’s testimony, the supreme court noted that the surgeon had been trained in reading and interpreting x-rays and even had instructed students on radiology and surgical issues. As in Ayala, the court held that his testimony would go to the weight of his opinion and not to its admissibility, Gill, 157 Ill.2d at 317.

A party is allowed to present expert testimony at a trial "if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence." Snelson v. Kamm, 204 Ill.2d 1, 24, 787 N.E.2d 796, 809 (2003).

The questions in Ayala really was whether the particular expert doctor is qualified to testify on the subject on which he was offering testimony. Courts have looked at this question closely in the past and, in light of Illinois precedent and the scope of Dr. Goldstein’s testimony in Ayala, the appellate court’s opinion was in the mainstream of Illinois jurisprudence.

In his work with cancer patients, Dr. Goldstein, as a specialist in gynecologic oncology for 40 years, was able to observe, learn about, and participate in decisions regarding hundreds of patients’ courses of therapy and treatment. He was involved in the choice of therapies, how the therapies had been managed, and the assessment of their effectiveness.

This was at the heart of the issues in the case.

Barring his testimony was a particular injustice because it deprived the plaintiff of the ability to prove proximate cause. Medical and insurance lobbies in Illinois have been all too effective in passing laws to limit damages in medical malpractice cases. They have been even more successful in creating a myriad of procedural hoops for plaintiffs to jump through in order to even bring a medical negligence case.

Although these procedures are condoned in the name of protecting doctors and the medical profession from frivolous claims, they should not be allowed to be used as swords to deny plaintiffs their day in court.

For example, in Florida, regulations were proposed earlier this year that would require out-of-state experts to obtain special licensing as a prerequisite to testifying, a move that critics said only served to create a chilling effect on experts for plaintiffs in malpractice cases because of the threat of disciplinary action.

The real impact, though, would be to protect negligent doctors by making it more difficult for victims to obtain qualified expert testimony.

Judges properly serve as the watchdogs of medical experts, striking or limiting testimony when proper challenges arise. Patients count on the courts to be mindful of protecting their rights so that, in the end, justice is achieved, the practice of medicine is safer, and accountability for one’s actions is attained.