Wolves in Sheep’s Clothing: The Danger of Expert Testimony Disguised as Fact Testimony from Treating Physicians in Medical Malpractice Cases

On August 26, 2015, a Florida appellate court overturned a $4.1 million verdict against a pediatrician accused of negligently diagnosing a child’s kidney disease due to the plaintiffs’ unfair use of expert witness testimony at trial. The judge who had limited each party to calling one expert witness per specialty at trial retired before the case was resolved. When the case went to trial in 2013, the plaintiffs called not one but four pathologists to testify about the cause of the child’s disease. The pediatrician objected to each of these witnesses and moved for a directed verdict and a new trial, but his objections were overruled and the motions were denied. On appeal, the court affirmed the trial judge’s denial of the directed verdict but found that the plaintiffs’ violation of the one expert per specialty rule, as well as their material misrepresentation of evidence on causation in closing arguments, unfairly and materially prejudiced the pediatrician and deprived him of his right to a fair trial.

The plaintiffs’ theory of the case was that the child’s renal failure was caused by a longstanding kidney condition, whereas the pediatrician argued that it was due to a fast-moving disease. The trial judge initially assigned to the case agreed with the pediatrician that the plaintiffs should not be allowed to call the child’s treating physicians to provide expert testimony on the timing and diagnosis of her kidney disease. Nevertheless, at trial two treating physicians and two experts—all pathologists—testified that in their medical opinion the child’s disease was caused by the longstanding kidney condition. Importantly, the treating physicians came to this conclusion for the first time at trial, not while they were providing care to the child.

Treating physicians are not typically considered experts because they are retained pre-litigation to render care to a patient, while experts are hired for litigation purposes and only see a patient or review medical records after the patient is represented by a lawyer. However, a physician who opines on expert-type subject matter, such as the standard of care in the industry, will be classified as an expert witness even if he or she provided medical services to treat the patient. To serve as a fact witness, a physician must limit his or her testimony to the facts of the patient’s care, such as the dates of the treatment, the symptoms with which the patient presented, and the course of treatment administered. The blurred line between fact and expert witnesses is especially dangerous in medical malpractice cases, and a trial court’s mismanagement of this critical testimony can be grounds for a new trial. As the Florida appellate court noted, “A well-known parable warns readers to be watchful for wolves in sheep’s clothing; trial courts should likewise be wary of litigants attempting to elicit expert testimony disguised as fact testimony from a treating physician.”