The problem of expert witnesses in medical malpractice trials

I went to court recently sitting quietly in the gallery listening to the testimony of two designated experts who criticized the care of a cardiologist (admired in local medical circles for his brilliance and excellent care of patients).  The case on first glance didn’t look very good for this defendant.  The patient had presented to the ER with atypical chest pain, was admitted and evaluated with an exercise test and nuclear medicine heart scanning but subsequently died of a massive heart attack four months later.

The two plaintiff experts questioned the interpretation of the tests (read as within normal limits) and said that the care did not meet the accepted standard of care.  They both felt that the patient should have had a coronary angiogram done to further rule in or rule out coronary narrowing.  They noted that the autopsy showed narrowing of two major coronary arteries and was the cause of death.

I later asked one of the attorneys just how they could identify and contract with experts in the field to testify against doctors.  He said, “Oh, that’s no problem.  There are web sites where a wide variety of experts can be found.”

But it gets expensive.  Given that taking depositions and flying in experts is so expensive, a case must be worth more than $250,000 for a plaintiffs attorney to even consider going ahead with a law suit.  So with their 40% contingency fee they might receive $100,000 but spend much of that just paying their experts and other costs.  So they hope for the “home run case” like a wrongful death to clear more than $1M after expenses.

The defendant was about 40, well trained and experienced in interventional cardiology — doing heart caths, stents, and angioplasty.  He elected not to do an angiogram based on established national guidelines.  Also, importantly neither the patient or primary care doctor contacted him after discharge from the hospital.   Over those four months the chest pain intermittently recurred, but no one contacted the cardiologist about this worrisome issue.

The first expert quibbled about minor EKG findings, “high normal” troponins, and the quality of the stress test and nuclear medicine scan looking for ischemia following the Bruce protocol testing.  However he was circular in his reasoning and very unconvincing.  Although he was on the clinical cardiology faculty of a medical school and was board certified, he was never trained in the skills of actually doing a coronary angiogram.

The second expert flew in from the East Coast, had Ivy credentials, but was unaware that nuclear medicine specialists can be certified to carry out nuclear cardiac stress imaging.  He was also never trained in invasive cardiac procedures such as coronary arteriography.  This expert on cross examination admitted that his initial bills for this case were already more than $11,000 and this did not include recent meetings with the attorney plus the two days billing for his trip to testify in Washington State.  He also admitted that he has testified in 35 different states in multiple lawsuits almost always for the plaintiff.

I sat there thinking, “Why do we try to do very difficult malpractice suits this way?  Does the jury have the ability to really sort out the technical questions about atypical chest pain, when they hear conflicting expert witnesses?”

I certainly feel sorry for the wife and adult children for the tragic loss of their father.  But is someone always to blame?  Hindsight is always easy.  Sure, a lot of patients might have had coronary angiography in this setting, but is that because it’s really indicated or are there other factors like financial incentives?  Our cardiologist would have been able to charge a nice fee if he did the procedure, but he followed his best judgment using accepted guidelines.  Somehow, the primary care doctor was never named in the suit though a hospitalist and the nuclear medicine doctor were – probably a bad omission by the plaintiffs attorney.

It was impossible to read the jury.  The 13 men and women were giving up nearly 3 weeks of their lives to serve a citizen’s duty.  They were attentive and asked some interesting questions when given the opportunity.  The judge kept the courtroom civil, yet the tension was high.

After adjournment for the day, I asked one attorney about the cost of bringing in expert witnesses.  She said it was a career for some experts,  “I know of a chiropractor who brings in more than $500,000 a year by testifying.  It’s common to charge $400-500/hour, but some local orthopedists charge up to $1,200 per hour and want to be paid in advance!”

Of course it’s hard to get doctors to testify against doctors.  We’ve all made mistakes and who are we to point the finger?  So it’s common to try to find experts from a different area – but 3,000 miles such as our second expert seems a bit extreme, also he must be accumulating lots of frequent flyer miles from testifying in 35 states.  I wonder how the jury will deal with this “hired gun.”

I plan to go back to hear one of the two defense witnesses in a day or two.  They will no doubt be local interventional cardiologists who will support the care given.

I’m not sure though that I want to hear the outcome of this case.  It seems that winners and losers come with lots of caveats.  A man is dead from a heart attack.  The family will continue to grieve.  The cardiologist may have a black mark on his record, but might “win” if not found at fault.  But doesn’t the jury have to find somebody at fault?  I would love to hear their deliberations.  The fly-in experts can’t really feel very good about the work they’re doing though they’re happy with the dollar flow.  The lawyers on both sides are simply doing their job.  The plaintiffs attorney is betting big on a huge settlement.  The defense attorneys are billing the insurance companies on an hourly rate, so they don’t mind the time spent – and likely feel good about trying their best to represent this client.  Insurance rates will likely remain high.

My question for is as follows:  Is there a better, more fair, less costly, politically feasible, and just way to handle a malpractice case such as this?  Mediation has already failed and the two sides can’t come to an agreement.  How should we ask our courts and law makers to deal with this?  Some countries don’t use juries for civil lawsuits like this one.  Any thoughts?

Comment:   According to Wikipedia , “The extra cost of malpractice lawsuits is a proportion of health spending in both the U.S. (1.7% in 2002) and Canada (0.27% in 2001). In Canada the total cost of settlements, legal fees, and insurance comes to $4 per person each year, but in the United States it is over $60. Average payouts to American plaintiffs were $265,103, while payouts to Canadian plaintiffs were somewhat higher, averaging $309,417.  However, malpractice suits are far more common in the U.S., with 350% more suits filed each year per person. While malpractice costs are significantly higher in the U.S., they make up only a small proportion of total medical spending. The total cost of defending and settling malpractice lawsuits in the U.S. in 2004 was over $28 billion.  Critics say that defensive medicine consumes up to 9% of American healthcare expenses.”

Jim deMaine is a pulmonary physician who blogs at End of Life – thoughts from an MD.

View 13 Comments >