Expert Witness Case #13
Case #13
Mr. H was a 65-year-old man who had been seeing his primary care doctor since 1992.
He had been diagnosed with GERD in 1998.
He also been seen by a GI doctor, Dr. B, for colonoscopies in the 1990s, 2000s, and 2010s.
In 2012, the patient underwent a CT scan of his chest for unclear reasons.
It showed enlarged lymph nodes near the esophagus.
There was no follow-up for this finding until 2015, when he saw Dr B for an upper endoscopy.
Biopsies confirmed esophageal cancer.
After undergoing treatment, he died in 2016.
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In 2017 the family filed a lawsuit against the PCP and GI doctor (both named Dr. B).
The plaintiff’s attorney hired a GI doctor as the expert witness, and his opinion is shown below.
The plaintiff offered to compromise to both of the physicians.
The family medicine doctor was offered $6.75 million to settle, and the GI doctor was offered $2 million.
The offers were made in April 2019, but the court records do not show any counter-offers.
In early 2021, the defense disclosed several expert witness opinions.
One in particular is very interesting as it evolved into a protracted battle related to his legal fees.
Dr. A was hired by the defense. He is a Family Medicine physician, helping to defend Dr. B. His opinion is shown below:
After the defense named Dr. A as an expert witness, the plaintiff filed for a deposition.
The deposition was done remotely due to COVID.
Dr. A and the defense attorney wanted to be in the same room during the deposition.
Therefore he drove to the hospital to meet the defense attorney, and the deposition was completed in a conference room.
Dr. A submitted the following invoice to the plaintiffs for the deposition.
The plaintiff objected to the travel fee that Dr. A requested. The following series of emails ensued between the plaintiff and defense attorneys.
Unfortunately the two sides could not agree on this issue. Therefore a motion to compel payment was brought before the judge.
The judge ordered that the defense attorney should pay the travel time, not the plaintiff:
The lawsuit reached a confidential settlement with all parties.
MedMalReviewer Opinion:
1) Lawsuits for failure to diagnose cancer are quite common. In this case a GI and Family Medicine physician were sued, but I have seen similar lawsuits across multiple specialties. They almost always occur when an x-ray or CT scan is ordered for an unrelated reason, and subtle findings such as enlarged lymph nodes or lung nodules are seen. It is easy to ignore these findings because they are vague and of uncertain significance. Both the patient and PCP need to be notified of these findings, and this communication needs to be documented.
2) In my opinion, this expert makes overly confident assumptions about the progression of the patient’s disease. There is no way to know if the patient truly had progression from Barrett’s esophagus to cancer between March 2014 and December 2015. This part of his opinion is built on guess work and assumptions, which have no place in expert testimony.
I know this case is a bit old now, but in terms of that Deposition Invoice: 1) $950/hour seems high; 2) I thought it was common practice to charge a minimum 4-hour or half-day fee for depositions - do some experts do that?