Sandy Brown, MD

Disclosures

February 19, 2008

It had been a dry spell for legal work when Ryan, an attorney acquaintance, asked if I wanted to consult on a driving under the influence (DUI) case. I like the occasional challenge of going through medical records and rendering an opinion; I'm less fond of going to deposition, and I'm petrified of going to trial and getting cross-examined, but in my limited experience as a medial expert it's never gone that far. Maybe that's why I continue doing it. Still, working for the defense on a DUI case made me uneasy, even though Ryan assured me it was a first offense, no felony was involved, and his client had no prior convictions.

"My client says he only had 1 glass of wine before he was pulled over," Ryan began, "and that the breathalyzer test was skewed by his having GERD." That was a new one for me. Generally, I believe laboratory tests. How could gastroesophageal reflux disease (GERD) give a false-positive result? Ryan explained: "Someone with GERD who drinks can regurgitate alcohol from their stomach when they're exhaling into the breathalyzer, making the test inaccurate. It's an established defense. Would you just look at the medical records?" "Ok," I said. "No harm in looking."

The records were not voluminous. In fact, there were only endoscopy reports from specialists who had scoped Ryan's client over the years for an esophageal stricture. Several diagnoses were listed -- gastritis, hiatal hernia -- but no GERD. Someone had prescribed a proton pump inhibitor, but only for a few months. There were no notes from the patient's primary care physician, and the gastroenterologist lived too far away and was too busy to testify. "Ryan," I said, "GERD is a clinical diagnosis. Someone has to make it. It's not done on the basis of medical tests alone." "Hold that thought." Ryan said. "I'll get right back with you."

Minutes later he faxed me some additional pages that he had forgotten to send. One had GERD scrawled in under diagnostic impressions. That was it. I called him back. "Hey," I said, "I'm not comfortable saying your client has GERD or that the breath test results were wrong." "I don't need you to say that," Ryan said. "I only need you to explain to the jury what GERD is. I have another expert to contest the results. Think about it."

So I did. I also looked at the GERD demonstration video that Ryan's other witness had sent him, showing small, animated orange circles bubbling out of an incompetent lower esophageal sphincter, along with some small blue circles flowing out of a pair of lungs joining at the oropharnyx to go into an evidential breath test machine. There were a lot more orange circles than blue ones. Next, I Googled "reflux and DUI." There were lots of Web sites -- all done by drunk-driving attorneys. Something just didn't feel right.

Then I realized what it was. Although I was only being asked to explain the mechanics of esophageal reflux disease, I was working for the defense in a DUI case in a community in which most members of the jury either knew me or knew who I was. That was prejudicial for the client, who was not even my patient, and against what I, being fervently anti-DUI, stood for. "Sorry, Ryan," I called back to say a day later. "Thanks for offering me the work, but I'm just not able to be your medical expert here."

An attorney I had once worked for called me a virgin expert witness -- meaning that I didn't make my living doing it. "Juries love you guys. They hate the pros," he had said. Well, I wasn't going to lose my courtroom virginity on a DUI case, that was for sure.

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