Successful Cross-examination of defense expert

The letter below was reproduced with the permission of its author - Honorable Edward W. McCarty III who at the time was a Justice of the New York State Supreme Court in Nassau County and is now the Nassau County Surrogate.  He wrote it to the senior partner of the law firm after a case in which I appeared before him as trial counsel to the firm was resolved.

The case involved perforation of the sigmoid colon during screening colonoscopy on a healthy woman.  The defendant inserted the scope and had difficulty advancing the scope beyond the splenic flexure.  He withdrew the scope and reinserted in “at which time peritoneal structures were observed and the scope withdrawn”.  An ambulance and surgeon were called and the patient was transported to the hospital and underwent surgery to repair the hole in her colon.

The defense expert was the Chief of Colon and Rectal Surgery at a major hospital in the community.  On direct examination he defended the case saying there was no departure from accepted standards of care.  He believed that the difficulty passing the scope was due to “looping” where the tip of the scope does not advance despite the hose being moved forward because a loop develops in the hose.  He expressed the opinion that adhesions may have caused a problem in the sigmoid colon as the scope was advanced resulting in the perforation.

The cross-examination brought out several points favorable to the plaintiff.

First, the expert agreed that the defendant had given untruthful testimony in asserting that although he did not pass the splenic flexure with the tip of the scope, he had been able to observe the mucosa all the way to the hepatic flexure, a distance of at least 12 inches.  He also agreed with the testimony of the plaintiff’s expert on this point that if the defendant thought he was able to see all the way to the hepatic flexure from the splenic flexure it was “pure fantasy”, and that he had told as much to the defense attorney, who nevertheless questioned the plaintiff’s expert on that point aggressively suggesting that he was being dishonest.

The expert was successfully impeached with prior inconsistent testimony on two occasions; first, having testified to the jury that he had performed 500 colonoscopies per year for many years, he was impeached with a statement that he performs 350 to 400 colonoscopies per year.  Secondly, having testified that he performed surgery on Chron’s patents on a weekly basis he was confronted with a statement that he operated on Chron’s patients every day – which he explained as having possibly “misspoken”.

It was suggested that the witness may be biased because he had been sued himself on 9 occasions and had a twenty year attorney client relationship with the defense attorney and his firm in connection with those cases.

The witness also conceded the authoritativeness of a “Consensus Statement” published in the American Journal of Gastroenterology representing a joint effort by the American College of Gastroenterology and the American Society for Gastroenterologic Endoscopy on quality indications for colonoscopy.  He conceded that he knew the document states that “looping” usually causes a “large rent” in the colon when he testified to his opinion that looping caused the tear in the case at hand, even though the perforation at surgery was described a 1cm hole with clean edges and he knew there was no large rent in the colon in this case.

He also admitted that the surgeon who repaired the colon (who he happened to know personally) did not describe taking down any adhesions in the process of extracorporealizing (lifting out of the body through the incision) the colon and repairing the perforation, even though that would be expected because adhesions would increase the amount of time and difficulty of the operation if they were present.  He then admitted that

he knew there were no adhesions according to the operative report when he expressed his opinion that adhesions may have caused the perforation.

According to the records in the case, the report of the colonoscopy was complete at 9:30 even though the scope had been removed at 9:24 and the defendant had recognized that a perforation had occurred and called 911 and a surgeon to meet the patient in the emergency room.

The expert agreed that the standard of care mandated that if a physician knows the cause of a complication such as colon perforation, it should be included in the records.  He was reminded of his testimony on direct examination to the effect that a colonoscopist knows when looping occurs because they can see on the monitor screen that the tip is not advancing despite the fact that the hose is being advanced.  He was then confronted with the defendant’s testimony that he was uncertain what caused the perforation.

The expert also conceded that when the scope cannot be advanced and the physician does not know what the problem is, it is a departure from accepted standards of care to try to overcome the resistance by reinserting and advancing the instrument anyway, which is what the defendant did.

Finally, he testified that the defendant departed from accepted standards of care in having the patient sign a consent form on the day of the procedure, while gowned and surrounded by medical personnel immediately prior to being put under sedation – a set of facts which he was unaware of prior to cross-examination.