Court upholds malpractice verdict against St. Elizabeth's ER doctor; rules against Dr. Google as expert witness in malpractice trials

The Supreme Judicial Court today upheld a nearly $3-million wrongful-death against Dr. Ivan Liang, who gave a 23-year-old man with a sort throat, a cough and pain on breathing a pain reliever and then sent him home - where he was found dead the next day of viral myocarditis.

In its ruling, the state's highest court also ruled it's one thing for hypochondriacs to use Google searches on their symptoms to confirm their worst fears. It's quite another for lawyers to use the results of these searches to question doctors in medical-malpractice suits, the court said.

That part of the ruling, however, did nothing to help Liang, because the court said that even if the two printouts from Web sites used to question him on the treatment of myocarditis had been excluded, the jury still had enough information to rule Jeffrey Kace died because Liang failed to consider the viral heart infection when Kace showed up in the ER and sent him home after a brief interview.

The court similarly ruled on Liang's request to reverse or reduce the verdict because the plaintiff's main expert witness was allowed to give his opinion on the length of the patient's ER exam - not long enough to find the myocarditis that killed him, the witness said - even though Liang's lawyers were not notified in advance of the testimony on this point. The court called this omission in pre-trial filings "troubling" and cautioned the lawyers not to pull that stunt again, but said barring the testimony still would not have changed the verdict.

As part of his questioning of Liang, alawyer for Kace's mother showed him printouts of online fact sheets from Johns Hopkins and the Mayo Clinic listing myocarditis symptoms, asked him to read them and to then comment on them.

The state's highest court said the judge should have tossed the printouts as hearsay, because they were undated, had no listed authors and the lawyer failed to lay the groundwork to prove the documents were "general learned treatises" by "a reliable authority" that could be trusted in court.

The content of the Web pages indicates that they are not medical "treatises" of any sort intended to be read and used by physicians, but rather are directed at laypersons: both Web pages list symptoms of myocarditis and direct the reader to call a doctor if he or she develops them. ...

The credibility of Johns Hopkins and Mayo Clinic as highly respected medical institutions or facilities is not enough to demonstrate the reliability of statements on individual pages of each institution's Web site. There is nothing to say who wrote each Web page, or whether the author of each Web page was an appropriate source of information regarding the common symptoms of myocarditis. ...

The court continued that even if the lawyer had made a successful case the printouts were "treatises," he still couldn't have used them to question Liang, because the evidence rules only allow their use when questioning expert witnesses - and Liang was testifying as the defendant, not an expert witness.

Therefore, evidence concerning the content of these Web pages, introduced for its truth, constituted inadmissible hearsay; the defendant's objection should have been sustained for this reason as well.

Despite all this, the use of the printouts did not prejudice the case against Liang because both he and his own expert witness pretty much gave the same listings of symptoms as the printouts, the court ruled.