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Should I Testify for a Patient?
SURVEY OF OPHTHALMOLOGY VOLUME 43 • NUMBER 5 • MARCH–APRIL 1999
MEDICOLEGALITIES JEROME BETTMAN, EDITOR
Should I Testify for a Patient? BUDD APPLETON, MD
St. Paul, MN, USA Abstract. Many physicians are reluctant to serve in the role of expert witness in a suit whose defendant is a physician. However, by fulfilling this role in an objective, professional manner, the physician-witness can act in the best interest of both patients and the medical community. (Surv Ophthalmol 43:458–460, 1999 © 1999 by Elsevier Science Inc. All rights reserved.) Key words. expert witness
•
medicolegal issues
“The days have passed when no reputable doctor would ever testify against another, when the medical profession could engage in what the courts termed the ‘conspiracy of silence.’ Substandard practice can not be ‘swept under the rug’ and it is well that it cannot.” So wrote the ophthalmologist Jerome W. Bettman, Sr., 20 years ago. The “conspiracy of silence” is still with us, though, and, unfortunately, it is the wrong people who now remain silent. Most of us who love and respect our colleagues still refuse to testify on behalf of their patients, but if we refuse, then who will do it instead? Black’s Law Dictionary describes an expert as one who is especially knowledgeable in a particular field on the basis of education or experience, and an expert witness as one who can assist the jury in understanding technical and complicated subjects. If you are ever sued for negligence, the expert witness for the patient will likely be someone you have never heard of, probably an ophthalmologist from another part of the country, but possibly even someone who doesn’t seem to have much expertise in ophthalmology at all. That expert witness (sometimes referred to as “the hired gun”) is likely to say what the plaintiff’s attorney wants and will help the
attorney slant things against you much more than any of your colleagues ever would. Actually, if you could choose your adversary’s expert, wouldn’t you choose a friend instead of someone you’ve never even seen before? But when we’re being sued, we don’t have the luxury of making that choice; the plaintiff’s attorney has already made it. Does it have to be that way? With enough prior thought and discussion, we could do a lot better, so let’s examine that issue a bit more closely. If we don’t work with the system, the system will just continue to work without us. Attorneys will find an expert witness, and the further they have to go for one, the less understanding and sympathetic that expert will be. Sticking our own heads in the sand is far worse than confronting the realities of this distasteful and complicated issue. When we participate in that “conspiracy of silence,” that’s exactly what we do: stick our heads in the sand. It’s time we started to deal openly with these realities. In my experience, nine of 10 ophthalmic malpractice allegations lack merit, and we have a duty to advise the attorneys in those cases that their case will not stand up in court. Most cases grow out of disappointment or anger on the part of patients who have 458
© 1999 by Elsevier Science Inc. All rights reserved.
0039-6257/99/$19.00 PII S0039-6257(99)00024-7
459
SHOULD I TESTIFY FOR A PATIENT?
lost confidence in their doctor. As Dr. Bettman has stressed, lack of rapport due to poor communication between doctor and patient sometimes results in that “unpleasant surprise” when the doctor learns that the patient has sought legal help. In some cases, someone else, another doctor perhaps, or a member of the doctor’s own staff may have said something inappropriate, which caused the patient to lose confidence. Also, there are those few patients, irrational or emotionally disturbed, who turn on their doctor for no apparent reason and manage to convince an attorney that they have a legitimate grievance. The common thread in all such cases is that the patient feels wronged, but, in fact, malpractice may not have occurred. Occasionally a doctor does make a mistake, and a patient may be damaged by it. The law is very clear that, under those circumstances, the patient can sue for damages and collect. This is why we all carry malpractice insurance. Most attorneys don’t have the specialized skills to know which patient grievances are legitimate and which will not stand up in court. When told by an aggrieved patient, even the most outlandish claim can be made to sound believable. However, few knowledgeable and sensible attorneys want to pursue a case if it lacks merit. In deciding whether to bring suit against a doctor, the attorney wants very much to be able to trust another doctor to give honest advice. But who can credibly tell an attorney that the case at hand should not be pursued? To litigate that one case in 10, that appropriate case, an attorney without good medical advice must regard every case as possibly being appropriate. Without good medical advice, malpractice attorneys can fill up the courts with cases that lack merit, and whose fault is that? We could blame the attorneys for it, but that certainly isn’t going to reduce the problem. Can we ourselves help the situation? Of course we can, but it won’t be easy or pleasant. The first step is to pull our heads up out of the sand and confront the realities squarely. If an attorney trusts you to help eliminate worthless cases, you can provide a very valuable service to the attorney, to the public, to patients, and to your colleagues. However, no attorney will trust you unless you first prove yourself trustworthy. Here are some ways you can do that. If you agree to be an expert for the plaintiff, follow these guidelines: 1. Never take a case on a contingency basis, i.e., only if the patient wins do you get paid. That’s the way attorneys work, and it’s okay for them, but it’s not okay for us. In some jurisdictions, it’s even illegal for us. If an attorney does ask you to do that, you should decline, pointing
2.
3.
4.
5.
6.
out that any such financial incentive might reduce your value as an advisor; you must preserve your objectivity. If the defendant doctor is a partner or close personal friend, disqualify yourself immediately. The attorney is almost certain to find out eventually and then won’t know whether to trust you. Don’t risk your trustworthiness. Have a complete fee schedule printed on your own stationery. Have a clear idea what your time is worth and establish your fees accordingly. Generally, charge for your services by the hour, to include review of records, phone conferences with the attorney, and, if appropriate, examination of the patient. You should also state what you will charge for travel time, as appropriate. Do not be reluctant to require a retainer in advance if there is any concern in your mind that your final bill may not be paid promptly. Do not criticize the defendant doctor. Your only job is to evaluate what the doctor did. Never imply that the defendant is not a good doctor. This can never be evaluated on the basis of just one case. Even if your opinion of the defendant happens to be low, have the good sense and the good grace to be quiet about it, even over drinks with the attorney. Your function is to evaluate the case, not the doctor. Don’t say anything to encourage or help the attorney to disparage your colleague in front of the jury. We have a responsibility to help keep awards for negligence consistent with the damages. We should firmly hold the position that the defendant is a competent doctor who just made that one mistake. The attorney may not like that, but stand your ground. That is a big part of our obligation to our profession and to the public when we participate in this sometimes distasteful, but socially responsible process. In conversation with attorneys and in court, state your willingness to give your expert opinion for either side, plaintiff or defendant, depending on what you believe to be the facts of the case. If you conclude that the defendant doctor has failed to adhere to the community standard, be prepared to say so in an affidavit or in court. Coming to that conclusion may not be easy in some cases and may even require that you consult with other colleagues, who may wish to be assured of anonymity. That is a legitimate step to take and okay to share with the attorney, who should value your doing it. In cases that lack merit, be dispassionate, logical, coherent, and complete in explaining to the attorney what the defendant doctor’s expert(s)
460
Surv Ophthalmol 43 (5) March–April 1999
will likely say to refute the plaintiff’s claim. If explained properly and sympathetically, this should satisfy the attorney, who will pass it along to the client, likely with advice regarding the futility of seeking a more aggressive attorney. 7. In cases where you conclude, after due consideration of all factors, that negligence has occurred and damage has resulted, do the best you can to quantify the damage, using such documents as the AMA’s Guides to the Evaluation of Permanent Impairment.
Conclusion It will take a strong sense of comfort with yourself, fortitude, and a lot of personal integrity to make the hard decision to break the “conspiracy of silence,”
APPLETON
but it is the right thing to do, especially for our ophthalmic community. If enough of us participate in this process, it can eventually lower the number of ophthalmic malpractice suits, lower the size of judgments in such cases, and lower our own insurance rates. If you decide to provide expert witness services for a patient’s attorney, don’t expect everyone to understand. You may be criticized behind your back, maybe even to your face. You may encounter harsh words from some colleagues, but you will be doing the right thing, and you will also be respected and admired for it.
Reprint address: Budd Appleton, MD, 121 Maria Ave., St. Paul, MN 55106, USA.
MEDICOLEGALITIES JEROME BETTMAN, EDITOR
Should I Testify for a Patient? BUDD APPLETON, MD
St. Paul, MN, USA Abstract. Many physicians are reluctant to serve in the role of expert witness in a suit whose defendant is a physician. However, by fulfilling this role in an objective, professional manner, the physician-witness can act in the best interest of both patients and the medical community. (Surv Ophthalmol 43:458–460, 1999 © 1999 by Elsevier Science Inc. All rights reserved.) Key words. expert witness
•
medicolegal issues
“The days have passed when no reputable doctor would ever testify against another, when the medical profession could engage in what the courts termed the ‘conspiracy of silence.’ Substandard practice can not be ‘swept under the rug’ and it is well that it cannot.” So wrote the ophthalmologist Jerome W. Bettman, Sr., 20 years ago. The “conspiracy of silence” is still with us, though, and, unfortunately, it is the wrong people who now remain silent. Most of us who love and respect our colleagues still refuse to testify on behalf of their patients, but if we refuse, then who will do it instead? Black’s Law Dictionary describes an expert as one who is especially knowledgeable in a particular field on the basis of education or experience, and an expert witness as one who can assist the jury in understanding technical and complicated subjects. If you are ever sued for negligence, the expert witness for the patient will likely be someone you have never heard of, probably an ophthalmologist from another part of the country, but possibly even someone who doesn’t seem to have much expertise in ophthalmology at all. That expert witness (sometimes referred to as “the hired gun”) is likely to say what the plaintiff’s attorney wants and will help the
attorney slant things against you much more than any of your colleagues ever would. Actually, if you could choose your adversary’s expert, wouldn’t you choose a friend instead of someone you’ve never even seen before? But when we’re being sued, we don’t have the luxury of making that choice; the plaintiff’s attorney has already made it. Does it have to be that way? With enough prior thought and discussion, we could do a lot better, so let’s examine that issue a bit more closely. If we don’t work with the system, the system will just continue to work without us. Attorneys will find an expert witness, and the further they have to go for one, the less understanding and sympathetic that expert will be. Sticking our own heads in the sand is far worse than confronting the realities of this distasteful and complicated issue. When we participate in that “conspiracy of silence,” that’s exactly what we do: stick our heads in the sand. It’s time we started to deal openly with these realities. In my experience, nine of 10 ophthalmic malpractice allegations lack merit, and we have a duty to advise the attorneys in those cases that their case will not stand up in court. Most cases grow out of disappointment or anger on the part of patients who have 458
© 1999 by Elsevier Science Inc. All rights reserved.
0039-6257/99/$19.00 PII S0039-6257(99)00024-7
459
SHOULD I TESTIFY FOR A PATIENT?
lost confidence in their doctor. As Dr. Bettman has stressed, lack of rapport due to poor communication between doctor and patient sometimes results in that “unpleasant surprise” when the doctor learns that the patient has sought legal help. In some cases, someone else, another doctor perhaps, or a member of the doctor’s own staff may have said something inappropriate, which caused the patient to lose confidence. Also, there are those few patients, irrational or emotionally disturbed, who turn on their doctor for no apparent reason and manage to convince an attorney that they have a legitimate grievance. The common thread in all such cases is that the patient feels wronged, but, in fact, malpractice may not have occurred. Occasionally a doctor does make a mistake, and a patient may be damaged by it. The law is very clear that, under those circumstances, the patient can sue for damages and collect. This is why we all carry malpractice insurance. Most attorneys don’t have the specialized skills to know which patient grievances are legitimate and which will not stand up in court. When told by an aggrieved patient, even the most outlandish claim can be made to sound believable. However, few knowledgeable and sensible attorneys want to pursue a case if it lacks merit. In deciding whether to bring suit against a doctor, the attorney wants very much to be able to trust another doctor to give honest advice. But who can credibly tell an attorney that the case at hand should not be pursued? To litigate that one case in 10, that appropriate case, an attorney without good medical advice must regard every case as possibly being appropriate. Without good medical advice, malpractice attorneys can fill up the courts with cases that lack merit, and whose fault is that? We could blame the attorneys for it, but that certainly isn’t going to reduce the problem. Can we ourselves help the situation? Of course we can, but it won’t be easy or pleasant. The first step is to pull our heads up out of the sand and confront the realities squarely. If an attorney trusts you to help eliminate worthless cases, you can provide a very valuable service to the attorney, to the public, to patients, and to your colleagues. However, no attorney will trust you unless you first prove yourself trustworthy. Here are some ways you can do that. If you agree to be an expert for the plaintiff, follow these guidelines: 1. Never take a case on a contingency basis, i.e., only if the patient wins do you get paid. That’s the way attorneys work, and it’s okay for them, but it’s not okay for us. In some jurisdictions, it’s even illegal for us. If an attorney does ask you to do that, you should decline, pointing
2.
3.
4.
5.
6.
out that any such financial incentive might reduce your value as an advisor; you must preserve your objectivity. If the defendant doctor is a partner or close personal friend, disqualify yourself immediately. The attorney is almost certain to find out eventually and then won’t know whether to trust you. Don’t risk your trustworthiness. Have a complete fee schedule printed on your own stationery. Have a clear idea what your time is worth and establish your fees accordingly. Generally, charge for your services by the hour, to include review of records, phone conferences with the attorney, and, if appropriate, examination of the patient. You should also state what you will charge for travel time, as appropriate. Do not be reluctant to require a retainer in advance if there is any concern in your mind that your final bill may not be paid promptly. Do not criticize the defendant doctor. Your only job is to evaluate what the doctor did. Never imply that the defendant is not a good doctor. This can never be evaluated on the basis of just one case. Even if your opinion of the defendant happens to be low, have the good sense and the good grace to be quiet about it, even over drinks with the attorney. Your function is to evaluate the case, not the doctor. Don’t say anything to encourage or help the attorney to disparage your colleague in front of the jury. We have a responsibility to help keep awards for negligence consistent with the damages. We should firmly hold the position that the defendant is a competent doctor who just made that one mistake. The attorney may not like that, but stand your ground. That is a big part of our obligation to our profession and to the public when we participate in this sometimes distasteful, but socially responsible process. In conversation with attorneys and in court, state your willingness to give your expert opinion for either side, plaintiff or defendant, depending on what you believe to be the facts of the case. If you conclude that the defendant doctor has failed to adhere to the community standard, be prepared to say so in an affidavit or in court. Coming to that conclusion may not be easy in some cases and may even require that you consult with other colleagues, who may wish to be assured of anonymity. That is a legitimate step to take and okay to share with the attorney, who should value your doing it. In cases that lack merit, be dispassionate, logical, coherent, and complete in explaining to the attorney what the defendant doctor’s expert(s)
460
Surv Ophthalmol 43 (5) March–April 1999
will likely say to refute the plaintiff’s claim. If explained properly and sympathetically, this should satisfy the attorney, who will pass it along to the client, likely with advice regarding the futility of seeking a more aggressive attorney. 7. In cases where you conclude, after due consideration of all factors, that negligence has occurred and damage has resulted, do the best you can to quantify the damage, using such documents as the AMA’s Guides to the Evaluation of Permanent Impairment.
Conclusion It will take a strong sense of comfort with yourself, fortitude, and a lot of personal integrity to make the hard decision to break the “conspiracy of silence,”
APPLETON
but it is the right thing to do, especially for our ophthalmic community. If enough of us participate in this process, it can eventually lower the number of ophthalmic malpractice suits, lower the size of judgments in such cases, and lower our own insurance rates. If you decide to provide expert witness services for a patient’s attorney, don’t expect everyone to understand. You may be criticized behind your back, maybe even to your face. You may encounter harsh words from some colleagues, but you will be doing the right thing, and you will also be respected and admired for it.
Reprint address: Budd Appleton, MD, 121 Maria Ave., St. Paul, MN 55106, USA.