“Has the standard of care been violated?” is the basic question in all medical malpractice cases. The answer to which may be difficult to determine because the standard of care is often unwritten. In addition, it can be ever changing, and is a blend of academic and private practice opinions.
In addition to having a broad base of experience with both private practice and academic medicine the expert witness must be current with the medical literature, knowledgeable about solid tumors such as cancer of the breast, lung, colon, thyroid, tongue, larynx, head and neck, esophagus, stomach, colon, rectum, anus, skin, melanoma, liver, kidneys, bladder, pancreas, ovary, testicle, hepatoma, and sarcoma, as well as soft tissue malignancies such as non-Hodgkin’s and Hodgkin’s lymphoma, the acute and chronic leukemia’s, multiple myeloma, anemias, leukopenia, thrombocytopenia, and pancytopenia. His/her experience should include chemotherapy, drug trials, collaboration with surgeons, radiation therapists and bone marrow transplantation sub specialists. Additionally, they should be familiar with the allied fields of radiation therapy, surgical oncology, diagnostic radiology, and surgical pathology.
An experienced oncology and hematology expert witness should be able to sift through the chafe of medical jargon, establish the essential facts of a case and articulate in either oral or written form a clear, concise, and ethical opinion supported by the premise of evidence based medicine. That opinion should state whether the standard of care was violated, causation, and the degree of damage the plaintiff sustained.
In choosing a medical oncology and hematology expert witness it is important to consider his training, experience, and years of involvement with medical-legal issues. As well as his ability to project credibility, explain complex medical issues in easily understood terms, and to have the poise and demeanor to withstand the rigors of cross examination while defending those opinions.
A few case studies from my 30 years of expert witness experience illustrate how such an evaluation can be useful.
A radiologist missed a tumor on a routine mammogram on a 40-year-old woman. 3-years later she had a second routine mammogram by another radiologist who observed a 3-centimeter tumor in her left breast. He also observed a 1 ½-centimeter tumor in the same area when he reviewed her first set of mammograms.
A surgical biopsy showed the tumor to be an invasive ductal cell cancer. A metastatic work up showed numerous bone metastasizes. After review I was able to tell the plaintiff’s attorney that the 3-year delay in diagnosis resulted in a 1 ½-centimeter increase in the size of her tumor. Also, more probable than not, the delay in diagnosis gave time for the tumor to spread to bone. I also was able to state that her cancer stage increased from a probable stage 1 with a 90% cure rate to a Stage 4, which is incurable, establishing a basis for damages. Therefore, the suit was settled in the plaintiff’s favor.
A housewife at age 51 joined a health maintenance organization. Over the next 5-years she saw 3 separate primary care doctors for a variety of minor problems. None of these physicians asked her to schedule annual physical exams, annual mammograms, annual pelvic exams with pap smears, annual stool tests for blood, or a colonoscopy. However, at age 56 she was diagnosed with stage 4 colon cancer and rapidly deteriorated. She died some 6-weeks after her first symptoms.
In evaluating the records for the plaintiffs attorney I reviewed the depositions of all 3 primary care physicians. I noted denials of personal responsibility to bring routine health maintenance procedures to her attention. All claimed that annual mailed recommendations by the health maintenance organization were a sufficient substitute for personal physician delivery and met the standard of care. I advised the plaintiff’s attorney that the primary care doctors and the health maintenance organizations were in error. The standard of care throughout the United States expected primary care physicians to advise patients personally and annually of age appropriate health maintenance procedures. Following my deposition the case was settled in the plaintiff’s favor for a significant sum.
A 65-year-old automobile mechanic complains of back pain and was diagnosed with non-Hodgkins lymphoma invading the vertebrae of his back. The patient submitted a labor and industries claim that blunt trauma to his back at work, one year prior to his lymphoma diagnosis caused the lymphoma. After a chart review, I was able to tell the defense attorney that the medical literature contains numerous references to anecdotal cases of cancer developing after trauma. However, there is not a single scientific study that proves that such an association is statistically significant. The case was dismissed by the state labor and industry disability board.
A 62-year-old asymptomatic fireman was noted at the time of an annual exam to have an elevated blood protein level which led to a bone marrow biopsy. The biopsy was interpreted by the pathologist as demonstrating “smoldering myeloma”, a quiescent variant of the more usual multiple myeloma. The fireman submitted a Labor and Industries claim for disability alleging inhalation of fire smoke caused the myeloma.
After reviewing his record and searching the medical literature, I was able to tell the defense attorney that there is a statistically valid association between firefighting and the development of myeloma. In this case, “smoldering myeloma” is considered a pre-cancer, which causes no damage, and may remain quiescent for the remainder of the fireman’s life. I stated that the claim for damages was pre-mature. However, it may be filed again in the future should his “smoldering myeloma” progress to a more active form. The case was dismissed by the state Labor and Industry Disability Board.
Case # 5:
A radiologist missed an area of increased density on a 40 year old woman’s routine mammogram. One year later the woman had a repeat mammogram by another radiologist who noted an area of suspicious increased density. Biopsy of the area was positive for invasive ductal cell cancer and showed no distal spread of the tumor. After ascertaining from the second radiologist that the borders of this mass were indistinct on both the initial and follow-up mammograms and that he could not ascertain a numerical size for the cancer on either mammogram I reported to the plaintiff’s attorney that although there was clear cut negligence on the part of the first radiologist by virtue of a delay in diagnosis there was no evidence that the cancer grew or spread between mammograms. Therefore there was no basis for claiming damages. The plaintiff’s attorney withdrew the filed complaint.
Case # 6:
A 60-year-old Hanford nuclear reservation employee was tested for prostate cancer at the time of an annual physical exam with a PSA blood test that was markedly elevated. A prostate biopsy was positive for prostatic cancer. The employee sued his employer claiming that in his employment he was exposed for years to radioactive material that caused his prostate cancer.
After reviewing the case I was able to inform the defense attorney that there was nothing in the medical literature that supported the claimants notion that his level of radiation exposure caused a significant number of prostate cancers. In addition, I gave him information that prostate cancer, for reasons not understood, is the commonest cancer for older men. It increases with age, being found in 50% or more of men of age 60 or older. Therefore it was a better explanation for this man’s prostate cancer than radiation exposure. The suit was withdrawn.
Chart reviews can be brief and inexpensive as some of these cases illustrate, or detailed and exhaustive. However, all should be tailored to the needs of the plaintiff’s or defense’s counsel.
About The Author
EXPERT WITNESS E-098408
This expert is a board certified medical oncologist and hematologist with over 40-years of academic, clinical, and expert witness experience. Trained at the University of Washington, he is licensed in the state of Washington. He also maintains a faculty position at the University of Washington as an Associate Clinical Professor of Medicine, and lives in Seattle.
BS, University of Washington
MD, University of Washington School of Medicine
Board Certified, American Board of Internal Medicine, Medical Oncology and Hematology – Subspecialty
Member, American Society of Hematology
Member, American Society for Blood and Marrow Transplantation
Contributor, Hematologic Malignancy Conference
Contributor, Seattle Lymphoma Rounds
Residency, Internal Medicine, Boston Medical Center
Fellowship, Amyloid, Boston University School of Medicine
Fellowship, Hematology and Oncology, University of Washington School of Medicine
Former, Clinical Instructor, Boston University, Boston University School of Medicine
Former, Acting Instructor, University of Washington School of Medicine
Former, Hospitalist, Swedish Hospital
Former, Attending Physician, Veteran’s Affairs Boston Healthcare System
Current, Assistant Professor, top-tier oncology-related medical center