Analysis of medical experts in malpractice cases

A reader emails me the following commentary on medical experts in malpractice cases:

Although I’m only a med student, I know several med mal lawyers and have inside sources that work at a couple of these law firms. Anyways, one issue I think you should pursue is how medical experts work. I have a wife that works as an admin assistant for a med mal lawyer, and its very frustrating and enlightening to discover how our court system is defiled by these so-called “experts.”

I think one thing that’s missed from all these debates is that doctors are just as much the enemy here as the lawyers are. Let me explain. Just about every state in the country requires that trial lawyers submit expert testimony from a medical doctor testifying that the defendant breached the “standard of care.” There are 2 problems with this system: 1) It’s far too easy to find an “expert” who will say whatever the trial lawyer wants him to say for the right sum of money; 2) “Standard of care” is an illusion written into tort codes that lawyers manipulate to their own advantage.

My wife recently brought home an issue of TRIAL, which is the ATLA’s main journal. This “journal” usually contains several articles regarding how to choose med mal cases, which didn’t surprise me. What DID surprise me is the advertising section. Guess what group dominated the ads? Doctors. That’s right, doctors advertising their services as “expert witnesses” was BY FAR the largest advertising group in the ATLA’s journal.

I asked my wife about this, and she provided further details. Being an “expert” pays EXTREMELY well if you have connections to trial lawyers. It’s common for experts to make up to $50,000 for one case if it goes to trial. For this fat sum of money, the expert spends maybe 20 hours or so working on depositions and court appearances. If you break that down to a per hour basis, its no wonder so many doctors have decided to get involved. The bottom line is that doctors get paid MUCH MORE to testify in court than they do treating patients. The expert fee works out to an astounding $2500 per hour. This creates a big incentive to mislead or even outright lie to gullible layperson juries who don’t have the training or knowledge to dissect the complex issues involved.

This leads me to another point. Trial lawyers often repeat the tired mantra that you cant be found guilty of malpractice unless you violate a “standard of care.” The problem with this statement is that “standard of care” = one plaintiff “expert” opinion. Since when is one expert’s opinion enough to constitute a “standard”? The American College of Obstetrics/Gynecology recently issued a new policy statement, based upon several scientific studies, that cerebral palsy is caused during labor only a very small percentage of the time. Now, according to “standard of care” logic that trial lawyers claim, shouldn’t that mean that cerebral palsy lawsuits should decrease? After all, who better to set a “standard of care” than the ACOG regarding this issue? Of course, that’s not what happened. The trial lawyers are still finding “experts” who will eagerly testify for a sufficient sum of money that cerebral palsy was caused during labor by the use of forceps, long delivery period, failure to read fetal heartrate monitors correctly, etc.

I support lawsuit caps, but by themselves its not enough. We need to cap expert witness fees. Even better, we need special medical courts where non-biased experts decide the case based on SCIENCE, which is the way med mal cases should be. The current expert system is a joke, and we as doctors need to recognize there are far too many of us who have decided to prostitute our profession out to the trial lawyers. The professional societies governing the varying medical specialties need to start closely examining their members who testify in court to make sure their testimony is valid. They should be sanctioned, censured, or outright kicked out of the society. According to a NY Times piece about John Edwards that ran several months ago, he once had to go through 33 expert witnesses before he found one who said what Edwards wanted him to say. Does that sound like a proper validation of “standard of care” to you?

Remember, behind every shark trial lawyer with a med mal suit, there’s a doctor backing up his case.

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