American College of Radiology

Retrieved on February 28, 2013. American college of radiology. (n.d.). Retrieved from https://www.acr.org/~/media/725B666BAC8E4AAD994EEA519C963655.pdf

ACR Practice Guideline on the Physician Expert Witness in Radiology and Radiation Oncology

Preamble

These guidelines are an educational tool designed to assist practitioners in providing appropriate radiologic and radiation oncology care for patients. They are not inflexible rules or requirements of practice and are not intended, nor should they be used, to establish a legal standard of care. For these reasons and those set forth below, the American College of Radiology cautions against the use of these guidelines in litigation in which the clinical decisions of a practitioner are called into question.

The ultimate judgment regarding the propriety of any specific procedure or course of action must be made by the physician or medical physicist in light of all the circumstances presented. Thus, an approach that differs from the guidelines, standing alone, does not necessarily imply that the approach was below the standard of care. To the contrary, a conscientious practitioner may responsibly adopt a course of action different from that set forth in the guidelines when, in the reasonable judgment of the practitioner, such course of action is indicated by the condition of the patient, limitations of available resources, or advances in knowledge or technology subsequent to publication of the guidelines. However, a practitioner who employs an approach substantially different from these guidelines is advised to document in the patient record information sufficient to explain the approach taken.

The practice of medicine involves not only the science, but also the art of dealing with the prevention, diagnosis, alleviation, and treatment of disease. The variety and complexity of human conditions make it impossible to always reach the most appropriate diagnosis or to predict with certainty a particular response to treatment.

Therefore, it should be recognized that adherence to these guidelines will not assure an accurate diagnosis or a successful outcome. All that should be expected is that the practitioner will follow a reasonable course of action based on current knowledge, available resources, and the needs of the patient to deliver effective and safe medical care. The sole purpose of these guidelines is to assist practitioners in achieving this objective.

I. Introduction

For the purpose of this guideline, radiology is defined as diagnostic radiology, interventional radiology, nuclear medicine, radiation oncology, and medical physics.

Radiologists and radiation oncologists are frequently called upon to serve as medical expert witnesses in a variety of legal proceedings and have an obligation to do so in the appropriate circumstances. This obligation includes not only the review of documents, radiologic images, records of treatments, and/or procedures but also the willingness to give sworn testimony by deposition or in court. The public interest requires readily available, objective, and unbiased medical expert testimony. The expert witness should be qualified for the role and follow clear and consistent guidelines. The American College of Radiology (ACR) recognizes the decisive role of the judge in determining admissibility of expert testimony as well as the difficulty in setting the balance between variations of viewpoints and their reasonableness, which fairness requires (see footnote 1).

Medical expert witness testimony is indicated in any legal proceeding in which the court needs an objective physician who is not a party to the case, has no personal 2 / Expert Witness PRACTICE GUIDELINE interest in the outcome of the case, and has expertise in the matter at hand to help explain the issues.

II. Qualifications and Responsibilities of the Expert Witness

The expert witness should be a physician with the following qualifications:

Unless otherwise stipulated by applicable state law, licensure and active engagement at the time of the incident under review and for a reasonable period of time in the practice of the radiologic specialty or subspecialty relating to the testimony.

Certification in Radiology or Diagnostic Radiology, Therapeutic Radiology, Nuclear Radiology, or Radiation Oncology by the American Board of Radiology, the American Osteopathic Board of Radiology, the American Board of Nuclear Medicine, the Royal College of Physicians and Surgeons of Canada, or the Collège des Médecins du Québec.

Education, training, and practical experience, as well as current knowledge and skill, concerning the subject matter of the case, including in a medical liability case the relevant standard of care.

Should the physician defendant be required by federal or state statute to fulfill certain educational or practice experience requirements, the expert witness should also meet these same requirements.

III. Requisites of an Expert Witness

1. The role of the expert witness is to help the fact finder analyze the issues in dispute necessary to decide the case. The expert witness is expected and should be able to render an opinion regarding the reasonableness of the conduct of the parties in the circumstances at hand. Depending on the legal issues being tried, this may include an opinion about a defendant doctor’s training and experience; the relevant standard of care; the relevance of particular imaging findings, interventional procedures, or radiation therapy treatment to causation of damages; or the adequacy of the technical equipment used. In a medical liability case, the expert opinion should be based on all relevant clinical and radiologic information available at the time of the incident now under review. Information, facts, and results of imaging studies performed after the incident generally should not be used to formulate an opinion. The expert witness should make every effort to avoid being influenced by hindsight bias [1]. It should be recognized that physicians with different levels of expertise may still practice within the standard of care.

• Recommended Guidelines of Conduct for the Radiologist and Radiation Oncologist Expert Witness
  1. Although the nature of legal proceedings is adversarial, the expert witness must be as impartial and objective as possible.
  2. In a medical liability case, the expert witness should be familiar with the relevant standard of care.
  3. The expert witness should review all relevant material and information in order to assure an informed and fair opinion. Images and other relevant materials reviewed by the expert witness should be the original images and other relevant materials used by the interpreting or treating physician in the case. If original images or other relevant materials are not available, good-quality copies of the originals may be acceptable. In cases involving images originally interpreted using a PACS, the expert witness review should consider the original algorithm and format (PACS or hardcopy) used by the interpreting physician.
  4. The expert witness should be prepared to explain the basis of his or her opinion and should take care that his or her proffered testimony will be scientifically valid and applicable to the facts at issue, can be or has been tested, and has withstood or reasonably could withstand a peer review. The expert witness should be familiar with and be prepared to address the known or potential limitations regarding his or her opinion, as well as the degree to which that opinion is accepted in the medical community.
  5. Compensation of the expert witness should reflect the time and effort involved. Linking compensation for expert testimony to the outcome of the case (contingency fee) is unethical. An individual holding an official capacity with the College who testifies in a legal proceeding must exercise great care to distinguish between his or her personal opinions and the policy positions of the College (see footnote 2). The expert witness can be held accountable for statements made during a legal proceeding.