Plaintiff’s Expert Changes Opinion and Gets Sued
The physician expert witness is one of the most important individuals in a medical malpractice case. Medical malpractice experts are retained to provide opinions on two essential elements of medical negligence (1) standard of care and (2) causation. The attorney orchestrates the case from beginning to end, but the expert has the responsibility of educating jurors on the medicine and why their side should prevail on the two elements. Litigating a medical malpractice case is a long and expensive process and experts are retained during the early stages of a lawsuit. Usually expert opinions are firmly established well before trial, but what happens if an expert suddenly changes his opinion on the eve of trial and can no longer support the case? Is a retained expert required to cover any of the costs when that expert backs out at the last minute? These questions were answered when a Norfolk law firm sued an expert it had retained for breach of contract where that expert changed his opinion and could no longer support his original theory of causation.
The plaintiff’s lawsuit alleged failure to diagnose a bone infection as a result of a radiologist misreading two CT scans. The plaintiff retained John C. Shaefer, M.D., an infectious disease specialist who was expected to testify that had this patient been properly diagnosed, the bone damage could have been successfully treated. Shaefer later changed his opinion after learning that a radiologist retained by the plaintiff would testify that surgery related blood flow restrictions could have contributed to the patient’s bone damage. Two weeks before trial Shaefer told the law firm that he could no longer support their client’s lawsuit.
The law firm nonsuited their client’s case and filed a warrant in debt in Norfolk General District Court against Shaefer seeking $25,000 in expenses. In response, Schafer filed his own lawsuit for unpaid expert fees. The general district judge dismissed both claims and both parties appealed to the Circuit Court of the City of Norfolk. Shaefer argued on summary judgement that he had a legitimate medical reason for changing his mind. The circuit court judge ruled that “a bona fide revision of an expert’s opinion is not actionable.”  However, the judge said that an expert could be liable for breach of contact “by failing to appear for trial, refusing to testify, or capriciously changing his opinion” without a legitimate reason. With the legal issue ruled upon by the judge, the factual issue of whether Schaefer changed his mind for personal reasons or for a valid medical reason was left for a jury to decide. The jurors found that Shaefer was not liable for breach of contract as he had a legitimate reason for changing his mind, but they did deny Shaefer’s claim for unpaid fees.
The vast majority of physicians who contract to work on a medical malpractice cases will not encounter legal action arising out of expert review, however, the case is instructive and highlights that agreeing to work as an expert is no trivial matter. For those cases that proceed to trial, the stakes are high and both parties have invested a substantial amount of resources. Therefore, it is essential for a physician to know the fundamentals of expert work before agreeing to take on that responsibility.
Understanding the complexity of the case and making known from the beginning how involved you will be in the case is a good start. Attorneys rely on experts for more than an initial evaluation of a case. Litigation is an ongoing process that typically includes review of deposition transcripts, literature, medical records, independent research, and occasionally testifying at trial. There is nothing more frustrating for an attorney than investing in an expert who initially is engaged in the process, but then as the case progresses becomes unreliable.
Many medical specialty boards include guidelines for expert testimony and can hold disciplinary proceedings against physicians for failure to adhere to those boundaries. For example, physicians have been sanctioned for offering opinions that are subjective, biased, or not within accepted scientific standards. Before agreeing to review cases check to see whether any professional organization you are a member of provides guidelines for expert testimony.
It is important to perform a proper conflict check before agreeing to take on a case. As a condition to your medical malpractice coverage through Piedmont Liability Trust, a physician cannot act as an expert against another UPG clinician who is a defendant in a lawsuit. The Piedmont Liability Trust routinely fields questions from physicians inquiring about working as an expert and can provide consultation on navigating this process.
 Peter Vieth, I changed my mind, Virginia Lawyers Weekly, June 12, 2017, http://valawyersweekly.com/2017/06/12/i-changed-my-mind/
 Warren & Assocs., PLC v. Schaefer, Nos. : CL16-10577, : CL16-10054, 2017 Va. Cir. LEXIS 104 (Cir. Ct. May 17, 2017)