Blog | Tuesday, November 5, 2013

Thoughts on testifying in a 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.

db is the nickname for Robert M. Centor, MD, FACP. db stands both for Dr. Bob and da boss. He is an academic general internist at the University of Alabama School of Medicine, and is the Associate Dean for the Huntsville Regional Medical Campus of UASOM. He also serves as a frequent ward attending at the Birmingham VA Hospital. This post originally appeared at his blog, db's Medical Rants.