6 thoughts after testifying at a medical malpractice trial

A few weeks ago I was an expert witness in a malpractice trial. In this post I will use generalities and specifically not reveal any details of the patient or the court case. I first became involved in this process several years ago. My involvement included a deposition, reviewing medical records, reviewing other expert depositions, discussing the patient’s most unfortunate story with lawyers for two different defendants, and finally testifying. This most unfortunate patient died but I do not believe that the defendants did anything wrong. The jury agreed.

1. We need special health courts. The jury process induces lawyers to couch their words, use sophistry, and work hard to present part of the story. This is clearly true for both the defendant and the plaintiff legal teams. If we had special health courts, then we could have a nuanced discussion of all the details of patient care. A jury trial leads lawyers to focus on details and try to “make mountains out of mole hills”.

2. Testifying is hard work. As physicians we try to consider both sides of every decision. We struggle over decision-making and regularly second guess ourselves. In testimony, we must become precise and clear.

3. Some physicians will testify in cases about which they really understand little. Reading the depositions of some other physicians saddened me. Physician experts get paid very well (yes, I was paid very well). Money does influence potential experts.

4. I will continue my personal philosophy of only accepting to testify in malpractice cases for which I believe I have clear expertise. Over the years I have accepted less than 10% of offered cases. I had testified once previously approximately 25 years ago, and had been deposed once in another case. But generally, I avoid malpractice cases because I do not consider myself qualified. This particular patient story did fit my particular experience and knowledge.

5. As a profession, we do have a responsibility to testify when we really have expertise.

6. The psychological impact of these charges on the defendants was palpable. These hard working, conscientious defendants had years of having these charges hanging over their heads. They did nothing wrong. That really does not matter in jury trial.

With my up close look at our malpractice system, my belief that we need special health courts is only strengthened. This suit put stress on both sides. A young man tragically died, but through no fault of the health care he received. A special health court could have given an answer much more quickly, for much less money. Our system is broken, I wish we could fix it.

Robert Centor is an internal medicine physician who blogs at DB’s Medical Rants.

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  • PrimaryCareDoc

    Very interesting. Thank you for your perspective.

  • Ron Smith

    May I ask your specialty area of internal medicine, i.e. the area of expertise with which you were testifying?

    Is testifying and or paid chart review something that you do often, or even exclusively, and in that area or other areas?

    Warmest regards,

    Ron Smith, MD
    www (adot) ronsmithmd (adot) com

  • Suzi Q 38

    The winners are the courts, the lawyers, and the expert witnesses.
    Maybe you are “one of the good and honest ones.”
    Most expert witnesses will say what you need them to say, for a huge fee.

  • Thomas D Guastavino

    I have been sued several times. I have never gone to trial and have had only one settlement only because the amount was low and there was no wrongdoing. It is clear that the present system has become a sick game where lawyers cast a wide net hoping to snare a few fish. Physicains that have been sued, and that is most physicians, have had the experience of being pressured by attornies to settle, claiming that it would be cheaper to settle then to defend. When doctors agree to this it leads to massive increases in premiums and cancellations of policies.
    I am amazed that attornies can make outrageous claims, claims that if made by anyone else they would sued for liable, without any proof, and the only thing they risk is their time. Special malpractice courts might help but there are to many ways this can also be corrupted. There are to many so called expert witnesses that have sold their souls. What is needed is a way to force attornies to focus only on those cases that have merit.
    1) Reasonable limits on non-economic damages
    2) Time limitations- Three years from filing to deposition, then three years to resolution. I had a case that took 17 years before it was dropped! In the meantime I was dinged every year for my malpractice insurance simply because this case was still on the books.
    3) Loser pays rules. If the case is dropped before trial then no payment. However, if it goes to trial and the plaintiff loses their attorney pays the defendants costs.

  • Deceased MD

    I was once subpoenaed to court on a case of a pt I had seen once in an ER setting years ago. It gets ridiculous. I did not remember the pt. I vaguely remembered the note I had written. I was asked absurd questions that were leading. All I remember is when i got to my office I feel asleep on my couch and was behind for the rest of the day. It was one of the most exhausting/draining days i ever had.

  • bill10526

    Malpractice litigation is so bad that it should be flushed down the toilet as was done in New Zealand. Dr. Guastavino’s comment is excellent in this regard, and I thank him for it. .

    There are too particular problems with malpractice litigation:

    1) Juries are asked to make decisions about causality that have no rational scientific answer. Thus “but for”‘s are often used as in a child becoming sick after being immunized. The vaccine cases are particularly troubling in that our best educated people buy into the nonsense.

    2) The payout from a life insurance policy is roughly proportional to the premium charged for it. There is no direct relationship between premiums and jury indulgence for malpractice. Patients should be charged directly for adverse outcome insurance prior to anyone being sick. Coverage should be mandatory with no insurance and no premium being an option. Payouts would be by schedule associated with premiums charged.

  • rs986

    Like the author, I have great doubts about the system. But I also think that there are physicians who DO make decisions that fall under the standard of care, who HAVE become so distant or poorly informed or busy that they make decisions that fall into a category of negligence, who have hurt, badly and sometimes lethally, their patients. For these patients and families, the ONLY option in most states is the courts.

    I was recently involved in my first court case (have reviewed six and always found for the doctor/defendant) but in my last case the harm done to the patient was so egregious and the attitude of the physician so cavalier that I felt the case was in fact an opportunity to draw a line in the sand about physician professionalism.

    I also found it extremely difficult to testify (as the author says, “It is hard work” and more), particularly in front of the accused physician, and it was difficult to argue against esteemed colleagues who were the defendant’s experts. But the fact remains, the physician acted wrongly, the patient was harmed, and in the end I DID want to advocate for that poor patient who was essentially powerless. A judgment was indeed made for the plaintiff, who did indeed get some compensation — not enough to make up for years of suffering but enough to feel as though, at least a little, justice was served.

    Throughout the years leading up to the trial date, however, I kept wishing there had been an “apology system.” All of the ensuing court-related suffering (and money!) would have been avoided if only the doc had come out at the start and said, “I’m so sorry, I screwed up, how can we compensate you for your loss.” But no system existed then and we all are the poorer for it.

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