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 An Intentional Expert Witness

Lessons Learned From Litigation

Louise B. Andrew, MD, JD

Disclosures

July 21, 2021

After my early outing as an expert witness, defending the care of a residency classmate against the testimony of one of our former faculty, I decided that I probably needed to learn more about what appeared to be a viable sideline for someone who enjoys research and who also does not shrink from performance art.

I was approached by a plaintiff attorney from a neighboring state. He had a federal case against a hospital in a neighboring district, involving a foreign national who died of a myocardial infarction (MI) in his hotel room several hours after being evaluated for chest pain in an Emergency Department (ED). Looking only at the ECG, I felt it was abnormal and should have prompted a more thorough evaluation than was received. This is how I testified. The case was successfully adjudicated with a sizable award for the widow. I probably made an enemy for life of my colleague who had provided care.

It was not long before the defense attorney in that case called and asked me to evaluate a case for him. I agreed. Taking a look at the case, I was dismayed that the care provided did not seem optimal. I wasn’t sure how to proceed.

I asked someone who had been a mentor in Emergency Medicine (EM), a few years ahead of me, who I knew did some expert witness work. He wisely informed me that the law does not require perfect care, but only care that is reasonable under the circumstances, and that if I chose to take on a case, I must be comfortable in my own skin that I was not judging by a “standard of perfection” from my ivory tower window. Viewing the case from that perspective, I could see that while the outcome was suboptimal, that this Emergency Physician (EP) had taken reasonable steps to diagnose a difficult case and had arrived at a conclusion that was in retrospect erroneous, but that did show consideration of possible alternatives and was not unreasonable under the totality of the circumstances. I agreed to testify.

Ultimately, it was this attorney who taught me what I needed to know, which is what the LAW requires of a medical expert witness. It requires that we know the standard of care, and that we are further qualified to give an opinion as to whether any deviation from the standard of care was the proximate cause of any injury sustained.

So, what is this “Standard of Care?” And how do we know it?

I’m fond of a German proverb that basically means “Few people know how much you need to know, in order to know how little you know.” And based on many subsequent conversations, I don’t think most physicians actually know the standard of care. However, because we feel we were well trained and practice good medicine, we typically believe that the standard of care is how WE practice medicine (especially on a GOOD DAY) in our practice setting, whatever that may be.

However, it really ISN’T. Like many legal terms of art, “standard of care” is not what we suppose but is precisely defined by statute and/or case law.

In almost every state, the medical standard of care is legally defined as some version of “that degree of care that would be provided by a reasonably competent practitioner practicing under the same or similar circumstances.” In other words, it was not MY standard of care (given that I considered myself more than reasonably competent as a recently minted faculty member practicing at Johns Hopkins, a tertiary care center), but rather, what an average doc could provide in an average ED with the usual backup in terms of staff, diagnostic testing, treatment, admission, and consultative services.

This seemed eminently reasonable to me, and although sometimes it is at best a guess (especially if our own practice circumstances are decidedly different), at least it was a working definition that I could apply in order to make a decision as to whether or not a colleague’s given care was defensible. And I could sleep with myself, not worrying about the next time I failed to provide perfect care, and there was a suboptimal outcome.

I never advertised my services, and my expert witness work continued typically to come from the opposite side of the courtroom, the opposing attorney noticing that I am able to express myself, and was believable to juries. I found the work to be intellectually stimulating and enjoyable, MUCH less stressful than emergency medicine, and the pay was as good. Others clearly were coming to this realization, and I remember well the explosion of EW procurement sites, and educational systems offering to teach you to “bulletproof your testimony” and to write an “unassailable expert report.” Early on in the Google era, searches for “expert medical witness” yielded hundreds of thousands of hits for individuals. Today, due to search engine optimization, the first 20 pages or so are all services or trainings.

I have come to believe most of these training materials and courses are aimed at honing winning legal strategies.

However, such advocacy is actually the job of lawyers. We as physicians may come to feel part of a team, and as competitive human beings we prefer not to lose. But that’s where we can easily go astray as expert witnesses. To Be Continued.


Previous blogs in the Lessons Learned From Litigation series:

An Unwelcome Initiation Rite
An Accidental Expert Witness
Practical Advice for Those Considering Expert Witness Work

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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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