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.

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  • aclumember

    Shameless “Liars for Hire” sometimes come with Ivy League credentials.

    • Ailan Medici

      Don’t these same ‘shameless’ expert witnesses work both sides of the aisle?

      • James deMaine

        The expert from the east coast had a record of testifying for the plaintiff more than 90% of the time and had often been paired up with the other expert for the plaintiff.

        • Ailan Medici

          My point was more general, in that any expert witness has the potential to slant evidence. If I were a juror on such a trial I would take anything a “hired gun” had to say with a grain of salt, no matter which side they represented. Which is unfortunate, because any verdict short of wrong site, wrong patient, wrong procedure would be a coin toss.

  • James McWilliam

    Even if the defendant wins, he will likely suffer increased malpractice premiums as a result of this case. The added cost can be significant.

    • James deMaine

      I talked to both the defense attorney and the Cardiologist after the
      trial. Both were relieved that the jury supported their position – 10
      of the jurors agreed that there was no negligence, though two felt that
      “someone had to be at fault”. In this civil trial only 10/12 were
      required to be in agreement, so the trial ended with a verdict for the
      defense. It was estimated that the plaintiff’s attorney had about
      $100,100 out-of-pocket costs for his experts and other expenses. I
      don’t know the dollar amounts for the three defense attorneys, the court
      costs, the jurors time, etc. The Cardiologist at the end was
      vindicated, though emotionally wrought and wondering if he should just
      give up practice. Let’s hope he can move on with a productive Cardiology practice.

  • Jason Simpson

    The real problem here is that “experts” can only discuss THEIR opinion, and not a standard. Yet, every state law says that in order to be guilty of malpractice, you have to be guilty of breaking a STANDARD of care.

    Yet in spite of that, they use a single hired gun expert whore to decide what the “standard” is. Its BS craps game and nothing more.

    The journal of the American Trial Lawyer Association has an ad section in the back of it. Guess which profession makes up over 75% of all ads in that magazine? Its not lawyers. It is DOCTORS hawking their skills as “expert” witnesses.

    Everybody wants to yell and scream about lawyers, but they dont have a leg to stand on without these hired gun whore “experts” trying to make a small fortune by testifying in cases.

    1. Cap expert witness fees. You get the same $ per hour that you would get treating patients, with an overall cap of, say, $3k + traveling expenses.

    2. Juries cant decide whose right between two competing expert witnesses. Get rid of the jury system and have a neutral panel of rotating MD/JDs decide cases.

  • DavidBehar

    As a group doctors are among the most privileged and immunized of all defendants. For example, a group grossing $5 million may have 4 law suits and be very upset. A welding business grossing $5 million, or a store doing the same, will have 400 lawsuits going all the time. Doctors should stop being cry babies, grow up, and serve as the spear point to rein in frivolous lawsuits against all businesses.

    Torts have never enhanced safety, only technology and systematic changes in methods have. However, I have to believe in torts because they are a valid substitute for violence. In Saudi Arabia, the cardiologist might have been arrested, beaten and imprisoned, were the dead patient a big shot.

  • DavidBehar

    The only remedies against the traitors to clinical care experts are within the trial and with the licensing board.

    The licensing boards do not consider testimony to be the practice of medicine, and think all testimony to be legally immune. However, all complaints are investigated, and dozens of licensing complaints should be filed against the experts, one a month, so that they remain under investigation for years, and must spend their prostitute fees on their own lawyers. For example, every utterance beyond the expert’s training and experience should be reported. I have driven a couple of busy, world famous experts from the testimony business this way.

    Better remedies exist within the trial, with the judge. One must hire a lawyer malpractice expert to terrorize the insurance company hack who needs a trial to break even to get him to do this. One should fire the insurance company worthless piece of shit at the slightest balking.

    Look for false facts stated by the expert. The defendant is an expert and must do this personally. Read every word of the resume, of the deposition. 1) seek to disqualify the expert, ending the case (thus the refusal of the defense lawyer to cooperate; the expert is not as experienced clinically as the defendant, is younger, more academic, thus not qualified; 2) find a statement of false fact, because opinions are immunized by the Free Speech Clause and trial immunity, but a false fact is criminal perjury. Try to have the expert not only disqualified but arrested for perjury.

    Such an effort is a duty to the profession which has brought all of us so much privilege and income. Be pitiless, as the adversary is pitiless.

    • EmilyAnon

      I hope your recommendations are applied to whichever side these
      ‘expert witnesses’ are representing.

      • DavidBehar

        No. Med mal is an evil theft by lawyers. About 80% of med mal claims are harassment, and frivolous. The plaintiff bar needs to be punished for its deleterious effect on clinical care. So if a defense expert lies in court, I would defend that with, “He just made a mistake, and didn’t mean to mislead the court.”

        Because of the self dealt immunities of judges and lawyers, I would support patients and families forming direct action groups to physically attack, and eventually kill the judges and lawyers raising health costs by 50%, and preventing system improvements that will end medical error, forcing their cover up. Today, every medical error is the fault of greedy lawyers. Judges allowing meritless cases to proceed should be boycotted, shunned. If they fail to learn, night riders should tie them to a tree outside the court, apply 50 lashes, and leave them for court employees coming to work the next morning. Kill them if they continue to attack clinical care. To deter.

  • ChuckPilcher

    The best way we can deal with our frustrations over the med mal “system”
    is to join it. Do you want a doctor like yourself or a “hired gun” on
    the stand? I believe it is every physician’s professional responsibility
    to offer their services to both plaintiff and defense attorneys. In
    over 30 years of case review I have seen only ONE “frivolous” lawsuit:
    the plaintiff attorney didn’t believe me that the defendant physician
    was practicing good medicine, sought out another expert, and lost. My
    cases are currently tilted slightly toward plaintiff work, but
    approximately 70% of that plaintiff work results in my support of the care rendered by the defendant physician, and no claim/case is filed. Good plaintiff attorneys appreciate that.

  • Kim Blackson

    The system works. I find it hard to believe this is a recent case with ‘hired guns’.
    Physicians need to police their profession with experts that give unbiased opinions. Credible experts would be practicing, board certified and with a university affiliation. More and more doctor’s hands are tied by employers and universities not to participate in a system that works!!

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