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Healthcare Practice
that the defendant radiologist would not have had at the time of the reading. Studies demonstrate that “expert witnesses are more likely to conclude that negligence occurred when they are told that the patient had a poor outcome.”
There are also legal or litigation biases. One is “compensation bias.” This encompasses the fact that an expert witness knows that if he has an unfavorable opinion for the requesting attorney, there is no further work and no additional income in that case. It also makes it more likely the attorney will not consult the radiologist for additional expert witness reviews in the future. There is also “affiliation bias.” This arises from knowing the side of the case, plaintiff or defendant, that is requesting the review.
To remove or minimize these biases, a blind review is recommended. While there is no perfect method to achieve a blind review and remove all biases, from a practical standpoint, a potential expert witness can be contacted by telephone or by letter in a blinded manner. The attorney can make the request for a review without disclosing the fact that there is litigation, without disclosing the side that he/she represents, and without disclosing the specific finding, and ultimate outcome at issue. The attorney can request that the radiologist perform no searches to determine their identity, where they work, or who they may represent. The attorney can arrange to provide the reviewing radiologist with a set of radiological studies, incorporating the study at issue. This can be done live or by providing a thumb drive with multiple radiological studies. The images should not contain any personal health information, such as patient names, dates of birth, medical record numbers, or other identifying information. The attorney should ask the reviewing radiologist to read each individual study and provide his/her interpretation and report. If followed, this process for review can eliminate contextual bias, hindsight bias, outcome bias, compensation bias, and affiliation bias. This process allows an unbiased review of whether the defendant radiologist met the standard of care.
After obtaining the blind review of each study, the attorney can reveal the specific study at issue, the alleged missed finding, and patient outcome. While not all biases can be removed, this process removes most biases, conscious and subconscious, strengthening the radiologist’s credibility as a testifying expert. While there are different methods to achieve a blind review, from the defense’s standpoint it is important to bolster the credibility of your radiology expert by removing or minimizing as many biases as possible.
Scott Salter is a Partner at Starnes Davis Florie, LLP in Birmingham, AL. Contact him at: ssalter@starneslaw.com.
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FDCC ANNUAL FIVES 2023