Most physicians have been defendants in lawsuits. Plaintiff experts almost always have a feeding frenzy. In truth, expert witnesses are held to codes of conduct about remaining objective and avoiding partisanship or advocacy. Yet, should the verdict favor defendants, these experts, except for deserving the term “hired guns,” are rarely, if ever, held accountable for their feeding frenzy, which conflicts with their ethical obligations.
I want to share my experience. I independently researched a landmark medical malpractice case, not as a defendant nor an expert, but just as an interested party. Byrom vs. Johns Hopkins Bayview Medical Center alleges that the failure to perform a Cesarean section for preeclampsia in a 16-year-old mother, who is 25-weeks pregnant, causes fetal brain damage.
The plaintiff’s attorney produces a medical expert, who is of the opinion doctors falsely inform the mother that damage to her unborn infant has already occurred and coerce her into rejecting a Cesarean section. His version of informed consent is that, even if a poor fetal prognosis is suspected, to prevent harm during delivery, doctors must advocate nothing other than a Cesarean section, even to the point of coercing the mother into agreeing.
The medical records document that defendants do advocate for Cesarean section, but not to the exclusion of extenuating risk factors and, certainly, not to the point of coercion.
Looking closer are eleven words in medical records, “Ms. Byron had recently arrived in the United States from Liberia.” The extenuating risk factor is the first 17 weeks of pregnancy when fetal development occurs in Liberia. Pregnancy complications are more common in Liberia; hence, there is ample reason to believe that the alleged injuries have another cause. The medical expert would have seen these words but, because they are inconvenient facts to his version of informed consent, he treats them as if they do not exist. To make matters worse, according to a Johns Hopkins spokesperson in a press conference after trial, for whatever reason, these facts are suppressed during trial.
The traditional version of informed consent excludes coercion under any circumstance. His distorted version for informed consent does immeasurable damage to the correct version. One measure is $229-million, the largest verdict ever recorded in the United States that the jury returns on July 1, 2019.
The Maryland Court of Special Appeals understands that something is amiss. On February 1, 2021, it overturns the verdict, singling out this medical expert’s version of informed consent as incompatible with the doctrine of informed consent in which coercion has no role. It rules that his version of informed consent is so error-prone that the presiding judge should have excluded it.
There is a long tradition of self-policing unethical conduct by medical societies and boards of physicians. They have oversight over medical experts. Also, there is a tradition to report unethical conduct. Because the Court of Special Appeals is so adamant, which gives credence to misconduct by this expert, I consider reporting him to the Maryland Board of Physicians. However, he is from Ohio and it limits jurisdiction to doctors licensed in Maryland. I reject this idea because it would likely decline jurisdiction.
On the other hand, Maryland’s Medical Society is an affiliate of the AMA and has standing with the medical society and the board of physicians in Ohio. In April, I file a grievance with it in the expectation that MedChi would forward this complaint to the Board of Physicians of Ohio. To my dismay, MedChi forwards my complaint to the Maryland Board of Physicians, the very idea that I reject. MedChi knows and should know that the Board would decline jurisdiction. As predicted, the Board declines.
When I make MedChi’s dismissive handling of my complaint a separate issue with the Board of Physicians, it responds that “the Board has no regulatory oversight or jurisdiction over entities or private medical organizations” such as MedChi. This is not entirely true. The Board takes action against such entities 20 times since 2018. Apparently, the Board decides which physicians and which organizations are off limits. To make matters worse, the Board’s response concludes with a gratuitous comment cautioning me to consult legal counsel before proceeding further.
In June, I take the matter of this medical expert to the Ohio Board of Physicians. The action taken by it is confidential; however, suffice it to say, that by comparison to my experience in Maryland, it understands petitioning for redress of grievance as fundamental, and the grievance is investigated. Instead of a subtle threat, its response concludes with, “The participation of citizens is critical to ensuring the quality of medical care in Ohio.”
I bring this to your attention because, in 1971, I took an oath to impart precept, oral instruction, and all other instruction to all indentured pupils who have taken the Healer’s Oath. Having done so, if it strikes you that, during the aforementioned trial, an opportunity was missed, only to be rectified by the Court of Special Appeals, then I leave you with this admonition. When you are a defendant in a malpractice suit, and you believe you are in the right, be relentless and use everything at your disposal to expose the opposing expert as a miscreant. Had defendants in this suit been so disposed, likely, the outcome would have been different.
Howard Smith is an obstetrics-gynecology physician.
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