Lessons Learned From Litigation

Practical Advice for Those Considering Expert Witness Work

Louise B. Andrew, MD, JD

Disclosures

June 28, 2021

My second malpractice case was not quite the bad surprise of the first (which I learned about from the Baltimore Sun). I knew from the hospital "grapevine" that a patient who had been seen in the emergency department (ED) by my resident and I was subsequently admitted from the urology clinic with a torsion of the testicle. This is almost a guaranteed malpractice claim in emergency medicine. We reviewed the chart and the care of the patient, who had presented with very nonspecific abdominal symptoms and did not have the characteristic tenderness or swelling pattern of this condition. Still, we didn't have another explanation for the discomfort, so I suggested that he be seen by the on-call urology resident.

Consultation by a specialist was required by our imaging department in order to do any special studies. In those days at Baltimore City Hospitals, it was not unusual for a consultant to refuse to see a patient, especially at night. (Even the chief of radiology once refused to call a technician in to do a study on a trauma patient at an inconvenient time "unless I had the neurosurgeon standing by to go to the OR.") The urologist said that this didn't sound like an emergency, and the patient could wait to be seen in clinic. We let the patient go, with warnings to return to the ED if the pain intensified.

So I was not that surprised when the summons arrived. In those days we did not have security guards in the hospital. Any process server could walk in, ask someone to identify you, thrust the envelope into your hands, and demand a signature. This tends to ruin your day in a busy ED (as it would in any practice setting).

When my lawyer began discovery (a process of finding out more information about the case than is found in the medical record), we learned that the patient had experienced more pain and did not return to the hospital as instructed, waiting instead for his clinic appointment. By then, he had all the classic signs of a torsion. The same urologist who had refused to see him in our department reportedly told the patient he should sue, and later even offered to serve as an expert witness.

But an expert had to be found in emergency medicine to testify as to our standard of care. That wasn't difficult. Someone from the teaching hospital across town was ready and willing. (As it happened, someone that I knew.) He later apologized to me for his testimony, but implied that the standard at his hospital was to do a testicular scan on any male patient with abdominal discomfort. I don't believe that was the standard then or now, but I already knew from my own prior experience that physicians do not understand the role of a medical expert (more later). Typically, potential medical expert witnesses are approached by a lawyer who is considering taking a case for a plaintiff, or who is assigned to defend a doctor. The lawyer will describe the case and ask whether the physician believes he or she can help.

But that is not what should happen.

Here is what should:

  1. When you receive such a call, stop the lawyer's narrative. Ask him or her the identity of the physician who is named in the (potential) claim and the clinic or location where the alleged malpractice occurred. Do you know this person, or do you have any other conflicts of interest such as partnership, working within the same health system or for the same employer, or any prior knowledge of the case? If so, you should not proceed.

  2. Ask whether the area of claimed malpractice is in your field. Is the patient (pediatric, adult, gender) someone you would normally treat in your practice? Do you actively practice in a setting that is similar to the setting in which the claim arose?

  3. Ask how voluminous the accumulated records. Do they include imaging studies? Are there additional materials that the attorney still needs to obtain? Don't allow any specifics to spill out, just these dry facts. You are trying to determine how much of your time this might require.

  4. Determine what the attorney needs. Is this a state where there must be notice of "intention to sue" or a certification of possible malpractice? Is that what the lawyer needs? Or is this step completed, and the attorney wants someone who can evaluate the case and potentially testify?

  5. Ask the timeline — when your work must be substantially completed. Is it realistic for you to meet this deadline?

  6. Presumably you already know the policy of your institution regarding physicians acting as expert witnesses. Some academic institutions require that any fees generated from expert witness work go to the department or the general fund. Others allow "moonlighting" on your own time.

  7. Specify that you will need to see all the records relating to the case, and that you will require payment in advance for any work that you do. Many plaintiff lawyers work on contingency, and if they can get a free opinion from you, they will.

  8. Ask for your retainer, in a bill along with a contract that stipulates the terms of your work with the attorney. How much should you charge? In fairness, you should charge the hourly rate that you would normally earn in your practice. Many savvy experts ask for more. Be prepared to explain why in court.

  9. Ask in what form the attorney wishes to learn your opinion. This may be a verbal report.

  10. Know the legal definition of standard of care in your state. You may be surprised at how low it actually is. Ask colleagues how they handle such a case. Don't assume that what you were taught as "best practice" is actually the standard. Be reasonable, and fair.

Undertaken knowingly and responsibly, being an expert witness can actually be honest work.

More later, if there's interest in this topic.

Please comment here at Medscape, 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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