Lessons Learned From Litigation

An Accidental Expert Witness

Louise B. Andrew, MD, JD

Disclosures

June 08, 2021

After my malpractice initiation, I was a bit jaded about the legal system. I felt I had been shortchanged by a medical education that didn't address malpractice at all, and that all lawyers were, shall we say, not the best that the earth had to offer.

A year or two later, I received a cold call from a female attorney in Baltimore. She asked me whether I might be willing to be an expert witness in an emergency medicine (EM) case. I didn't know how to respond.

In my prior case, the plaintiff's expert was the co-author of the very first textbook in emergency medicine. I had read his testimony and felt it to be reprehensible; I had no intention of following his example. I also had no clue as to the appropriate way to respond to such a call from a lawyer. So I just said, "Tell me more." (Which, in retrospect, was exactly the wrong thing to have said. More to follow in an upcoming post.)

She explained that the case was against Dr M (a former residency classmate of mine), still practicing in Baltimore, and described the case. From what she told me, my classmate's care seemed to reflect the standard for that condition as we had been taught. Not sure what to do next, I asked, "Who is the expert on the other side?" She named a former faculty member from our program. I was first taken aback, and when I thought about it, a bit outraged.

Ours was the second class of the second EM residency in the country. We had no faculty who had trained in EM. Truly, we had only a handful of faculty and only two that were full-time. One had started out in cardiology and switched over after a year, and one had just finished training in general surgery and came directly into EM. It was the latter, a former surgeon, who was named as the plaintiff's expert. The case involved an emergency medical condition and not trauma. By now board certified in internal medicine and EM, I felt reasonably qualified to testify.

"Send me the records," I said, and wondered how I should handle the potential conflicts of interest (as I understood such things at the time, still being a naive young doctor.) After reviewing the records thoroughly, I felt strongly that the case had been managed properly by my colleague. I agreed to serve as an expert and was warned not to discuss my opinion with anyone, least of all my former classmate.

When I learned the opinion being proffered by our former faculty member, I was appalled. Clearly, this individual (who had taught me much of what I knew about trauma) did not know his medicine and also seemed to hold my classmate to an impossibly high standard of care. In fact, he had nothing positive to say about the care provided.

Meeting later with the defense lawyer, I learned that this former faculty had testified in quite a few other cases, nearly all of them on behalf of plaintiffs. I was flummoxed. Still a new faculty member myself, it occurred to me that just on principle I would never agree to testify against someone I had taught, because we held a special position of trust with our trainees. And, of course, as faculty we were responsible for the standard of care these trainees were learning. If the standard we taught was not appropriate, or if trainees abrogated that standard, it seemed to me that reflected poorly upon us, for bad teaching.

The "expert" had already left our faculty and was reportedly then doing mostly insurance work. In retrospect, the defense attorney herself was fairly young and may not have had much experience yet as a litigator. She asked me if I had any advice for dealing with this "expert." I recounted that he was quick to anger and didn't respond well to having his knowledge challenged. I gave her everything I could find from the literature that supported the care rendered by my classmate and testified accordingly.

Ultimately, this defense lawyer was able to challenge the plaintiff "expert" effectively on the stand, using fairly unassailable evidence as to the standard of care for the medical condition. He became angry, disgraced himself, and the plaintiff lost the case.

Early lessons learned from this "adventure in expert witnessing":

1. Some "experts" can always be found to support a malpractice claim, no matter how weak.

2. Lawyers return to "experts" who have "played well" for them in the past.

3. Expert witness work pays well, often better than practicing medicine — at least in EM.

4. Expert witness testimony typically takes place behind closed doors, and recordings of such testimony rarely leak out; therefore, there is little risk to this lucrative side endeavor.

5. Traits that did not serve us well in the medical profession may also not play well in the expert witness role.

Once again, my response to this lesson was a bit extreme. I studied, wrote, and lectured on what constitutes ethical expert witness testimony and started an organization to engage others. Some later lessons learned:

6. Physicians (self-included) are rarely taught the appropriate role of a physician in providing expert witness evaluation or testimony, except by the lawyers who engage them.

7. Physicians believe we understand the concept of "standard of care," based on what we were taught in training, but most do not. In training, and in textbooks, we are taught ideal medical care; this goes far beyond the legal standard.

8. The role of legal expert can be fascinating or repugnant. I found it to be both. Serving as an expert witness can help improve the practice of medicine. Done ignorantly or carelessly, it can easily debase our profession.

More later, if there's interest in this topic. Please comment here and also share ideas for future posts with me at Medscapementor@gmail.com

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About Dr Louise Andrew
Louise B. Andrew, MD, JD, is a fifth-generation physician/attorney and a leader in the American College of Emergency Physicians and, recently, the American Medical Association. She cofounded a number of physician service organizations and has received numerous national and international awards. Throughout her career in emergency medicine and since, she has maintained MDMentor.com and Black-Bile.com, websites supporting physicians. She teaches, counsels, testifies, and mediates for physicians, hospitals, and others on aspects of physician wellness, behavior, litigation and regulatory stress management, medical expert witness issues, disability, and physician suicide prevention.

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