Testify Against a Colleague? Kiss Your Friendship Goodbye

Mark Crane

Disclosures

September 26, 2016

In This Article

Malpractice Cases Involving Many Physicians

It's not unusual for plaintiffs' attorneys to initially file suit against every doctor who saw the patient, said Michael Sacopulos, a defense attorney in Terre Haute, Indiana. "Several doctors of different specialties treat the same patient," he said. "The attorney wants to solicit testimony from one doctor to blame another. After taking depositions, he usually will zero in on a target and dismiss the other doctors from the lawsuit. You can't refuse to participate, and you must testify honestly or you could put yourself in jeopardy."

Physicians are naturally reluctant to testify, and often with good reason. "One doctor who didn't want to testify told me, 'I don't want to stick my neck out. I have to live and work in this town. The defendant is a popular doctor and his brother is a big-shot lawyer,'" said James Lewis Griffith Sr, a veteran malpractice attorney in Blue Bell, Pennsylvania.

However, if you are subpoenaed, that isn't voluntary. You must respond and answer questions. "But be careful. If you volunteer information that turns out to be inaccurate, you could face charges of libel or slander," says Griffith.

Rick Boothman is the chief risk officer at the University of Michigan Health System and a veteran malpractice defense attorney. "We're a teaching hospital, and we treat many patients who were transferred from a community hospital. We'll often have questions about what went on before we saw the patient," he said. "Were mistakes made? Did a delay in diagnosis or treatment have an impact on the clinical outcome or prognosis?"

"We advise our doctors not to speculate on what the patient's presentation might have been before he got to us," Boothman said. "The version we get from the patient may lack specifics. Is the patient trying to avoid admitting he has an alcohol problem? Is there a hidden agenda? It can be irresponsible to offer opinions about the quality of care before we saw the patient."

"In most states, a doctor has a proprietary interest in his own expert opinion," he said. "He cannot be compelled to opine on whether another doctor violated the standard of care. Many physicians feel a bond and responsibility to the patient and want him to get some financial help. We'd never discourage that, but we tell them to make sure of their facts. Never volunteer to testify on the basis of hearsay information."

"For example, in cases of a brachial plexus injury, our doctors might be asked for an opinion on whether the obstetrician put too much traction on the infant's neck," he said. "So a neurologist, seeing the child 1 year later, is asked for an opinion about the delivery. That doctor wants to help the child get needed financial support, but it's a dicey situation and not always so clear-cut."

"Doctors are in a tough spot. They're torn about testifying against a colleague because they know that healthcare is inherently risky, and they feel 'there but for the grace of God go I,'" Boothman continued.

"Some physicians still take the attitude that patients who bring malpractice suits are sleazy," he said. "We know better. Mistakes do happen. Litigants need access to honest opinions. The litigation situation is certainly imperfect. But it can't work if we rely only on paid expert witnesses. For a few bucks, I can hire a doctor who'll say damn near anything."

Plaintiffs' attorneys don't necessarily need a subsequent treating physician to testify that a colleague violated the standard of care. "I don't expect a doctor to go out on a limb and slam a colleague," said Armand Leone, a radiologist and plaintiff's attorney in Glen Rock, New Jersey. "I mostly want him to testify to back up what's in the medical records so we can establish what the injury is. Then we can hire our own experts. And we always issue a subpoena to that doctor to provide him some cover, so that it doesn't look like he volunteered to testify."

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