How a doctor reviews cases for both plaintiff and defense attorneys

Early in my career, a local defense attorney working with my hospital would occasionally ask me to review a case in which another physician client of her firm was the defendant. As Medical Director of Evergreen Hospital Emergency Department, I was comfortable with hospital records, knowing where to look in a record for information – both recorded and not recorded – that either helps or hurts a case. I found the work interesting and educational. Each case I reviewed made me a better physician; it was better to learn from the mistakes of others than to learn from my own. And, I enjoyed going to bat for my colleagues … and still do.

Then one day I was called by a plaintiff attorney who had previously deposed me as a defense expert and asked if I would consider looking at a plaintiff’s case. I was honored, accepted the challenge, and discovered the experience little different than working for a defense attorney. I found that plaintiff attorneys were, in general, professional, capable, respectful, took serious cases, and were just trying to do their best for their clients, within the system we have established for such matters.

Medicine is not all science. There are gray areas. That’s why we call it an “art,” and most physicians practice it well. Occasionally a mistake (or what the Brits refer to as a “therapeutic misadventure”) is made, and doctors who make them never feel good about it. More commonly, however, there is a perception that a mistake has been made. Whether an error has occurred or excellent care has been provided with a bad outcome, both mistakes and perceptions can result in litigation. To determine which cases contain error and which cases do not requires intensive scrutiny by attorneys and their experts. Despite attempts at developing a less adversarial approach, that is the system we have.  And this system requires physician involvement. It is dependent on a professional assessment of the standard of care.

So, I got involved.

I now review cases for both plaintiff and defense attorneys and approach each case as a blank slate.  I review the record and ask myself “If I were asked to testify for one side or the other, whose side would I want to be on?” There have been many cases where my review tells me I have been contacted by the “wrong side.” When I inform the inquiring attorney – either plaintiff or defense – of my findings, I have encountered nothing but gratitude. Plaintiff attorneys appreciate an honest opinion, especially if it would save them the time and effort of prosecuting a so-called “frivolous” case. And defense attorneys like to know where their case is weak in order to plan a course of action. And when giving testimony about a case and asked about my experience as an “expert,” I take great pride in responding that I provide opinions to both plaintiff and defense. I believe my credibility increases.

Bad things do happen to good people, both doctors and patients. Given that this is the “way we do things” I do not want “hired guns” reviewing my work or that of my colleagues. Each patient and each physician, both plaintiff and defendant, deserves to have their situation reviewed by a physician whose training, experience and practice situation is most similar to that in which an alleged mistake was made. As a community-based ER doc, I would prefer this if I were a physician defendant (and I have been). And as a patient or family member who suspects that something less than the standard of care was provided, having a real-life doctor review the matter is only fair. While academicians or “hired guns” clearly have been able to influence cases, I believe that their dissimilar practice experience is sometimes less impressive to a jury (or insurance adjuster) than the opinion of one who has been “in the pit.” Facts are facts, and one’s opinion about those facts should not change depending on whose side one is on. Thus, in providing my opinions, I adhere to the principles of the American College of Emergency Physicians’ Affidavit for Expert Witnesses.

Finally, a word on fees.  I am appalled by some of the fees I hear being charged by a few so-called “experts.” As the first person in my family ever to attend college (much less med school), I find it hard to accept that anyone is worth that kind of money. I may be naïve, but I don’t think my opinion given to an attorney should be more valuable than my advice given to a patient. My fees are based on an approximate value of what I have been charged by attorneys for my own personal legal work and the hourly value of the services that I render to my patients. And they are the same for plaintiff and defense.

If physicians don’t stick up for what’s right when things go wrong, or someone thinks so, we have only ourselves to blame.

Charles A. Pilcher is an emergency physician who has helped both plaintiff and defense attorneys with malpractice litigation for over 25 years. He can be reached at his self-titled site, Charles A. Pilcher, MD.

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  • http://www.twitter.com/alicearobertson Alice Robertson

    Physicians rarely rat on colleagues….even when they know it was blatantly wrong….like an unwritten code….a secret right hidden behind seemingly sanitary white coverings…..a Knights of the Roundtable elusive, nobility…but you are right….for the right price a doctor will prostitute themselves. I will say a doctor unintentionally harmed my child…did not read the lab report…sent us home twice saying all was well….all was/is not well…the delay in treatment caused the cancer to spread to her lymphs…it seems the cancer may be in level 5 on her neck and this operation will mean a lifetime of problems with her left arm (spinal accessory nerve). This happened at Cleveland Clinic…The Ivory Tower in the land where the patients should feel so safe….his Chair lied, he lied, but he was cited by the Ombudsman…no apology. Her own surgeon is writing a book with the Chair….a stacked set of medical cover ups…while we play clean up…wait in a type medicinal abyss….my mother’s heart has conquered my
    mind….all because an ENT did not read the lab report that showed the sample was too dry. We did not sue….but risk management is surely the Black Knight….our daughter’s records were falsified…the Chair refused to honor our doctor’s paperwork requesting IT to remove the false notes…therefore, the records you base some of your own conclusions on are doctored….

  • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

    Alice Robertson: That’s a load of crap. When a plaintiff’s attorney wants to hire a doctor to say sh-t for money, the line runs out the door. I’m sorry your child had a bad outcome, but the emotion with which you write is what is wrong the medical malpractice business. It’s about emotion and outcomes, not errors. I can’t believe the writer above is so proud that he says sh-t abut other doctors and gets paid for it. Depression, suicide, divorce. These are just a few of the consequences of lawsuits, which are usually just conquests for money. You, Mr. Pilcher, make me sick. 

    When you applied to med school, did you tell the physicians on the admission committee your goal was to testify against other physicians in court? Isn’t thre something more noble you could do, like volunteer for your church, or play softball with the disabled?

    • http://www.twitter.com/alicearobertson Alice Robertson

      Dave….I hope your child is never hurt by anyone because your angry response would surely be one of vindictiveness. Of course it is emotional…. If you are harmed you are emotional, angry, and you will be searching for a doctor via your lawyer so you can sue. I didn’t sue, but at times I felt like it. I didn’t even file with the Ombudsman…they called me…the doctor filed…he was angry that an employee posted on an employee only bulletin board about the situation. It was deleted and five months later they called me repeatedly….even though my daughter was not named the employee was almost fired at the negligent doctor’s request.

      A parent’s job is too protect their child….you just do not see a doctor as neglectful….and I believe it is usually unintentional…so are most automobile accidents. But whether my hurt and emotion over watching my child look like she has been decapitated, and suffer needlessly, are appropriate or not is really pretty inappropriate….her doctor agreed the delay in treatment caused it….and thinking of all the pain that could have been avoided if he had just read the lab report instead of letting a medical read it and rely a wrong message.

      That said your post is quite negligent in at least good manners:). Top of the mornin’ to you too:)

      • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

        nd my job is to take care of patients. You (and the public) just don’t see how that is impossible when I spend 90% of my time looking over my shoulder worried that he next patient I see will bring with him a lawsuit. Show me the study that says that the CYA, defensive medicine you have in the U.S. is better then any other medicine. What do you rank, 37th in the world? 

        • http://www.twitter.com/alicearobertson Alice Robertson

          And did you use your crack research skills to find out how countries get different ratings? We have a lot more deaths from gun shots here….and we considered a premature child born dead as a human being before other countries, etc. I can send you to the research and where our real rating should be if the standards for the stats were a level playing field.

  • http://pulse.yahoo.com/_CME6JQJG65UMEGQXR63CVVYLG4 roberta d

    oh dave s, get a life.  It’s the defense that can hire hired gun for all the repeat business without fear of retailiation from the profession.  the defense has all the lying greed monster.  And apparently, you still can’t beat the rap with all that going in your favor.

    I’m sorry you are such a bad greedy doctor. I’m sorry you have the IQ of a rock.  I’m sorry that I’m sorry you are an insensitive sociopathetic jerk   I’m sorry you got into med school on your parent’s weath with absolutely no brains. 

    Did you state in your med school interviews that you had absolutely no brains, but a very upper middle class white male background  and that you wanted to collect a large sum of money to let you live as you grew up

    I’m a doctor (who earned way in, no favortism) who was a victim of worthless pieces of chiz like you.   When you applied to med school, did you tell the physicians on the admission committee your goal was to collect money for your brainless worthless efforts? Isn’t there something more noble and more in line with your very limited intellectual abilties you could do, like be a greeter at the walmart?    

    Yes  there are consequences of lawsuits.  .  Like people who worked their way out or poverty are sent back their by selfish overprivileged idiots who didn’t, like you!       And the malpractice from people who should never have been admitted to practice who did it for conquests for money

    • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

      Show me the study that shows “malpractice” has ANYTHING to do with “people who should have bever been admitted to practice”. Why is it that if you are a surgeon, you have a 100% chance of being sued if you practice 10 years? Are 100% of surgeons “incompetent”? It’s about outcomes, not “incompetence”.
      And by the way, Roberta, the ad hominem attacks don’t work; I don’t even practice medicine in your beloved United States of Litigation. I take care of patients, instead of lawyers, in Canada, where I’m able to care about my patients, without fear of being sued. 

      And please. Read a book about logic. You made about 10 assumptions/insults about me that are laughable. You don’t even know who I am yet you know I am wealthy, and got into med school by “favoritism?” How did I do that? 

      • http://www.twitter.com/alicearobertson Alice Robertson

        A study was released recently that showed the doctors who apologize end up paying less in malpractice suits. Translated…that means a screw up happened. The study was done on nearly a quarter million cases over ten years. It is very helpful for a state to have apology laws. It is helpful to the patient and the doctor. Instead of defending cover ups…blaming others for the obvious…push for apology laws that give you impunity….but….that takes humility to make the law worthwhile.

      • http://www.twitter.com/alicearobertson Alice Robertson

        I teach Logic….her assumptions seemed logical to me:)

        • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

          “doctors desperate to immigrate here?” Do some Googling Alice. The brain drain has reversed. More docs emigrate to Canada from the US then from the US to Canada. 
          And let me tell you that it’s a PLEASURE that the patients and myself play “on the same team” here. No suspicions or paranoia that my patient may sue me because he smokes 3 packs a day and has an MI despite all I do for him. Enjoy your lawsuit-filled society, Alice, but just think “hmmmmmm” when your doc tells you “Alice, I don’t think it’s cancerous, but we need to pursue that tiny lump “just in case”.

          • http://www.twitter.com/alicearobertson Alice Robertson

            I wish he had said that….and hmmm….Canadian immigration stats show you are wrong it is tenfold the Canadian doctors who get to come to the US….many more are denied. They are scared they will get treated by a rogue doc like you:).

      • http://www.twitter.com/alicearobertson Alice Robertson

        Canada? The land of leaky, old government equipment, waiting lists and doctors desperate to immigrate here? The picture you painted of a Canadian doctor is one with a huge chip on their shoulder for Yanks and lawyers. My husband is a British citizen who lived in Canada….I guess it’s better thsn nothing:)

  • Anonymous

    In an effort to avoid ranting about malpractice lawyers (plaintiff and defense), let me go right to the topic of the actual post – a physician who will review for both sides – and who gets it! Kudos, Dr. Pilcher! Yeah…there will probably be some comments about how every doctor who testifies for a defendant is just helping out a fellow doc. There will be those who say – every doctor who rats on a fellow colleague is just a plaintiff’s “whore” in it for the bucks! 

    Having done defense med mal for over 25 years and plaintiff med mal now for the last 5 plus years (and doing both for most of the last 5!), all I want is a doctor who will REALLY review the records carefully, have the expertise to give me a solid opinion and tell me what his/her honest opinion is on a case. Call it like you see it – after doing a proper review of the care/records. You got it so right, Dr. Pilcher, an honest, well-founded opinion goes a long, long way. If there is a valid case, fine – we go with it. If there isn’t and I have a good basis for explaining that to the family, that’s fine too. It is a enormous and dreadful waste of time, money and resources (from our perspective) to be dealing with a case of a bad result only – i.e. no violation of the standard of care and/or causation. If the public only knew how much time, money and effort goes into screening cases! Personally, I can say without hesitation that for all the calls we receive, for the investigations of claims we undertake (if the potential client gets by the screening call), that our decline/rejection rate is no less than 98%! When we get solid, honest, well-founded opinions from people like you, Dr. Pilcher, we go with it. Amazingly (not so amazing really), when we do file a claim/case, the vast, vast majority settle. If they don’t settle, our success rate is very, very good (albeit not perfect). Our “stats” tell me we must be doing it right – based on solid, honest good reviews/opinions from qualified doctors who tell it like it is. 

    Keep up the good work, Dr. Pilcher! 

    P.S. In case anyone reads this and is wondering – NO, I’ve never had contact with Dr. Pilcher as an expert in any of our cases. Having read his post, however, I just may make that fact a thing-of-the-past.

    • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

      I’ve always considered any doctor who participates in this unjust system, whether for the plaintiff or defense, to be equally despicable. I don’t think “whore” is the appropriate term. I consider them “Gepetto’s” or “puppets”. They are being paid to say sh-t. If you act as an “expert” and you notice your mouth is moving but your brain isn’t thinking of the words, it’s because the “nashlawfirms of the world ar telling you what to say. DO you think they’d hire you if in reality you argued the opponent was right? Impartial?

      Listen, I have no stake in this game. I work in Canada, and I’m happy here. But I have worked in the U.S. Most patients have NO IDEA how their healthcare has been sabotaged by lawyers and defensive, CYA medicine. Doctors are unable and unwilling to do what’s best for the patient anymore. EVERY patient that comes in is a potential lawsuit, and I don’t care what your doctor tells you, that weighs on his mind when he treats you. At least 75% of the tests s/he orders (probably more) are to prevent a lawsuit. It SUCKs to be a doctor in that environment, but even worse, it sucks to be a patient. Do you think the NASHLAWFIRMS of the world add anything to your healthcare system? If you do, you are very sadly mistaken.

  • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

    Since 2009, more docs have entered Canada from the US then vice-versa:

    http://fftimes.com/node/238576

  • http://www.twitter.com/alicearobertson Alice Robertson

    I am on a cellphone with an infared trackball, so this will be messy. Canadians come to Cleveland Clinic and pay for care…the docs where you live come here at a rate of 9 for every one that is lured to here with some of the deals they are offering because of physician shortages…you also have a high rate of foreign doctors because it seems Canadians are not buying the PR. More would immigrate here if they could.

    Your argument is illogical…I drive within the speed limit because of fear of consequence…remove that fear…and to romantically think doctors just want to help mankind soooo much they will not be careless is a fallacy of human nature’s capabilities. The stats I have come right from Canadian immigration…….

    Snippet>>>>>>>>>>

    While Canada has a fair share of trained physicians they tend to leave the country for better job opportunities abroad. This has led to a shortage of general practitioners in Canada. The fact that sub-specialists jobs in Canada hardly exist will lead to further migration to the US in future.

    Statistics reveal that doctors in America make almost twice the amount of money compared to doctors in Canada. This alone is the single most motivating factor causing Canadian physicians to relocate to the United States.

    A Canadian census conducted back in 2001 revealed that specialists in Canada earn up to $ 125,000 annually. Compare this with the statistics revealed by the US Department of Labor and you find that American physicians make about dollar 100,000 more as their total earnings add up to $ 228,000.

    However $100,000 extra in America may not be a good enough reason to migrate. Dr. Barry Rubin, the chief of vascular surgery in Toronto’s University health network suggests that greater income is not the reason which causes Canadian physicians to relocate to the United States. Furthermore running a private clinic has higher costs in America which can cut down the actual benefits of the higher earnings.>>

  • http://www.kevinmd.com kevinmd

    I didn’t block you. All comments that include a link need to be approved first.

    Kevin

  • http://pulse.yahoo.com/_YR6SIWFXUJ244XGEZC3SVBZ4TY dave s

    I know of no doctor up here who makes 125K (or close). I make more in Canada then I made in the U.S. Honestly, though the taxes are higher up here. But I’ve always said (and many others) that I would take a major pay cut if it meant being able to treat patients without the fear of litigation and the feeling of constantly being under attack. It’s unfortunate that so many of you cannot see what medicine is like without the constant threat of lawsuits. 
    The argument of patients (and doctors) coming over the border in the thousands is still being perpetuated but it just isn’t as true anymore. 80% of Canadians surveyed are happy with the healthcare system. Yes, some do go to border hospitals for private care (ie Detroit) but those are the wealthy. 

    • http://www.twitter.com/alicearobertson Alice Robertson

      I don’t know Dave ……there is still some good swamp land available in Florida….ha!

      It is not wealthy Canadians…it is desperate Canadians…and many. I am three hours from Windsor, and four hours from Niagara…friends in Toronto. The taxation we paid on bills while there was over 20%, then Canadians have payroll taxes. When we go to the UK we sit and watch them talk out of both sides of their mouth….side one….they claim it is the best care in world….free even…I guess Irish fairies are paying for it….then tales in numbers I have never heard of here…..waits for important procedures that are jaw dropping….just like Canada.

  • Anonymous

    this post is basically an advertisement- a post with nearly identical content was posted by mr. pilcher on at least one previous occasion. this site should be above passing off self-promotional junk like this as a legitimate post.

    also, it is worth mentioning that the physicians following this post have moved the conversation to sermo, due to problems with censorship here. we’ll see if this comment makes it through.

    • http://www.twitter.com/alicearobertson Alice Robertson

      That is interesting…what is sermo….and are doctors feeling just so misunderstood….or is it capitalism under the guise of altruism….or freedom to chat without pests….oh the mind dances with the possibilities. I know there are doctor only boards where they moan and groan incessantly…..is there a doctor in the house? Ha!

  • Anonymous

    Have you thought about being a neutral medical expert?  It sounds to me that you are able to see both sides and that your opinion is truly based on the case at hand rather than a bias one way or the other.  A neutral expert can help both sides in a non-adversarial disclosure and transparency program to better understand what happened.  Then, the parties can work together to resolve the conflict in a way that works for them, with the assistance of Collaborative Law attorneys specially training in the process.  The court system remains available if they so chose. 

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