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.

Comments are moderated before they are published. Please read the comment policy.

  • Anonymous

    “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.”

    Having just traveled through the med mal mess, I couldn’t agree with this writer more. However, in my case, it was the surgeon and anesthesiologist that were named in my son’s death (we learned at the depositions) that were each expert witnesses in over 100 cases per year. Area attorneys wouldn’t touch our case because they “needed” them for more profitable cases. It seems there is more to this than you would think. By being experts in the area where they practice medicine, they were also being protected in other ways. Our attorney and us, the plaintiff, would not accept any expert’s testimony unless it was valid. But, we did meet a few attorneys and physicians who would say anything for the right price.
    –dag–

  • Mrs. E

    Was it Winston Churchill who said “Madam, we know what you are, we are just haggling over the price?”

    Seems to me that some medical experts, awful attorneys, myopic”only see the money chest” politicians, unscrupulous developers, and just plain greedy, selfish human beings are the root cause of all the messes that we are in as a nation~dare I say the world? We ALL need to take the blame, and then begin the arduous process of cleaning up. We have been sitting on our heels for way too long, looking the other way or becoming anesthesized. America, the land of the lotus eaters, needs to roll its collective sleeves up.
    We may not be able to put the spilled milk back in a bottle, but we can surely send the evil genie back in~one bottle at a time.

  • Curious JD

    Is there evidence that the number of cerebral palsy malpractice cases have increased?

    Does anyone even know the percentage of time that malpractice is found in a cerebral palsy case vs. the number of cases overall?

    Or is this just more of the rigorous anecdotal “proof” that physicians are so inclined to use these days?

  • Anonymous

    The first post was fascinating and shows how horrible non-economic med mal caps are.

    “Area attorneys wouldn’t touch our case because they ‘needed’ them for more profitable cases.”

    Hmmm. The death of a child is not a profitable case? Why not? Is it because it’s close to impossible show the economic damages from such a case?

    Empirical evidence shows that–due to caps–severely injured children now recover more than those the doctors kill.

  • Anonymous

    Let me just answer that…yes. We were told that the deaths of children have no legal worth, at least in NYS, because some of the laws have not been changed since the 1800s regarding pecuniary loss. Children provide little income to the family just as stay at home moms and the elderly. I studied this with law professors before I proceeded. At one point, we were asked how many fields our son plowed along with other ridiculous questions. We were only after answers, not money but because of the secrecy that generated for our insistence on accountability, we had no choice but to pursue the issue. We received no money and very few answers following 4 years of hell. Oh yes, the physcians continue to be expert witnesses, never appologized and may be working on your child next.
    –dag–

  • Anonymous

    Dear dag,

    Your story was so sad. Please accept my sympathies and condolences. As a parent, I can only imagine your pain, cringing and feeling sick to my stomach.

    It’s not that doctors can’t be trusted–it’s that no one really can if their money and reputation is on the line. THe law is a crude and awkward instrument, and doctors have innumerable weapons for deception and self-protection.

    G-d bless,
    AC

  • Anonymous

    Training video: “Removing Insult from Injury: Disclosing Adverse Events”
    http://www.jhsph.edu/
    publichealthnews/
    press_releases/2005/wu_video.html

    Some friends at Hopkins produced this video after hearing of my son’s death-and several other similar cases. Please purchase one for your institution. Sorry, for deferring from subject Kevin but I’ve sadly become the expert here.

    thank you,
    –dag–

  • Anonymous

    Sobering letter, to say the least. The current system is a joke what with the plethora of ambulance chasers and unscrupulous doctor “experts” who are susceptible to the large bribes, errr, fees paid by the lawyers.

  • Anonymous

    my son has cerebral palsy and it WAS caused by my physician. I had a severe placental abruption which began during labor. When my doc was notified of “large amount of bleeding with clots” and that my son’s heartbeat was in the 180′s he told the nurses it was “probably cervical change”. Nothing was done. I bled, and bled and bled…I was scared to death, but trusted the nurses and my doctor too much. 4 pints of blood later, and a significant drop in heartrate, my son was delivered with a 1 min Apgar of (you guessed it) ZERO. After recussitation he was taken to the NICU for 2 weeks. Now he has cerebral palsy and all anyone can talk about is how CP is rarely the doc’s fault. Yes, it’s rare…but it happens. It’s not an all-or-never issue.

  • Anonymous

    Thank God the state of PA has not instituted caps, I am a victim of horrific medical malpractice and am awaiting my soon to come day in court. God help those who never had a substantial income to substantiate even a chance at a claim.