Wallbank v. Rothenberg
In Wallbank v. Rothenberg, 74 P.3d 413 (Colo. Ct. App. 2003), a physician was sued for failing to have obtained certain radiology studies before performing head and neck surgery. Id. at 415. Before trial, the court denied a motion in limine seeking to exclude evidence of any expert's "personal practice." Id. at 416.
At trial, one of the plaintiff's experts testified that the standard of care required the radiology studies before performing surgery. Id. Another plaintiff's expert testified that, although the standard of care would not necessarily have required obtaining such pre-operative tests, she herself would have done so. Id.
The defense expert testified that, although he personally would have obtained the radiology tests prior to surgery, the standard of care did not require such action. The jury returned a substantial verdict in favor of the plaintiff, and the defendant doctor appealed. Id. at 415. P31 In addressing the relevance of the experts' "personal practices" to the standard of care, the appellate court observed:
While State Bd. of Med. Exam'rs v. McCroskey 880 P.2d 1188 (Colo. 1994) and Denver & Rio Grande R.R. v. Vitello 34 Colo. 50, 81 P. 766 (Colo. 1905) make it clear that a standard of care may not be established by the testimony of the personal practices of expert witnesses, those cases do not address whether this testimony may be relevant when other evidence is presented concerning the applicable standard of care. This question is a matter of first impression for Colorado appellate courts.
We conclude, as did the trial court, that testimony concerning the experts' personal practices was of some relevance because each expert also testified concerning the applicable standard of care. We reach this conclusion for the following reasons.
First, as the McCroskey court noted, "the actual practice in a community" is the starting point in determining a reasonable standard of care. Thus, once the expert testifies concerning the standard of care, then testimony of that expert's personal practices may help the jurors understand why that standard of care is followed by that expert or other experts.
Second, testimony regarding an expert's personal practices may either bolster or impeach the credibility of that expert's testimony concerning the standard of care. Here, the Wallbanks' expert who stated that the standard of care did not require obtaining a CT scan or MRI nevertheless stressed the importance of obtaining those tests when questioned about why she did so on a regular basis. Under CRE Colorado Rule of Evidence 607, the Wallbanks could impeach their own expert. Similarly, the Wallbanks properly cross-examined Rothenberg's expert concerning his personal practice to obtain tests, when he testified that the standard of care did not require obtaining a CT scan or MRI. See C. Frederick Overby, Trial Practice and Procedure, 51 Mercer L.Rev. 487, 501-02 (1999)("The relevance and importance of a medical expert's personal choice of a course of treatment is highly probative of the credibility of the expert's opinion concerning the standard of care. A jury is free to disregard the expert's opinion entirely and find that the standard of care is reflected by the course of treatment the expert would have chosen, a highly probable scenario if other evidence admitted in the case supports this proposition.").
Third, because each expert addressed the applicable standard of care, testimony regarding their personal practices was proper direct and cross-examination. Thus, the jury could give whatever weight it determined was appropriate to the testimony of those experts, including ignoring it completely. Id. at 416-17.