Radiologists cannot invade the province of another specialty under the guise of testifying "regarding causation only."
Naomi Welch recovered a substantial verdict against Elie Khoury, her Orthopaedic Surgeon, based on his failure to act promptly to improve the post-surgical positioning of a prosthesis in her hip. Khoury's insurer appealed, arguing that it should have been allowed to present the testimony of two radiologists whom it claimed would argue that there was nothing in the post-surgery x-rays for Khoury to correct.
Welch presented the testimony of two orthopaedic surgeons who identified improper alignment of the prosthesis, radiologically, and the need to act immediately, and the Defendants' experts conceded that these post-surgical decisions about alignment are solely the province of the surgeon--who routinely ignores the opinion of the radiologist. On that basis, the Court of Appeals had no difficulty in rejecting the Defendant's complaints about the exclusion of the radiologists' testimony. Clearly, it was offered in direct violation of the statute that requires that standard of care testimony only be taken from expert physicians who share the same credentials as the allegedly negligent doctor. The testimony would have violated the "tort reform" statute and could not avoid confusing the jury.
The Court went on to deal with several housekeeping arguments raised by the doctor's insurer regarding the judgment that was entered. Because the insurer had rejected a recommended case evaluation settlement, it was required to pay attorneys fees and costs to Welch, and the Court approved an award of $400.00 per hour (taking into account the difficulty and complexity of the case, the standard in the community, the risks and expense of the trial, and the excellent performance by Welch's attorney, who had 30 years of experience). The Court also approved the attorney's hourly record over objections that it was too vague in compiling almost 300 hours of time in the final stages of the litigation.
The Court did return the case to the lower court in order to determine whether all of Welch's experts' "trial preparation" time should be collectible. Under the existing law, a prevailing party can tax certain expert expenses for trial testimony, but cannot tax costs associated with "educating the attorney," for example.