By Charles A Pilcher, MD
Early in my career, a local defense attorney working with my hospital would occasionally ask me to review a case in which another physician client of her firm was the defendant. As Medical Director of Evergreen Hospital Emergency Department, I was comfortable with hospital records, knowing where to look in a record for information – both recorded and not recorded – that either helps or hurts a case. I found the work interesting and educational. Each case I reviewed made me a better physician; it was better to learn from the mistakes of others than to learn from my own. And, I enjoyed going to bat for my colleagues… and still do.
Then one day I was called by a plaintiff attorney who had previously deposed me as a defense expert and asked if I would consider looking at a plaintiff’s case. I was honored, accepted the challenge, and discovered the experience little different than working for a defense attorney. I found that plaintiff attorneys were, in general, professional, capable, respectful, took serious cases, and were just trying to do their best for their clients, within the system we have established for such matters.
Medicine is not all science. There are gray areas. That’s why we call it an “art,” and most physicians practice it well. Occasionally a mistake (or what the Brits refer to as a “therapeutic misadventure”) is made, and doctors who make them never feel good about it. More commonly, however, there is a perception that a mistake has been made. Whether an error has occurred or excellent care has been provided with a bad outcome, both mistakes and perceptions can result in litigation. To determine which cases contain error and which cases do not requires intensive scrutiny by attorneys and their experts. Despite attempts at developing a less adversarial approach, that is the system we have. And this system requires physician involvement. It is dependent on a professional assessment of the standard of care.
So, I got involved.
I now review cases for both plaintiff and defense attorneys and approach each case as a blank slate. I review the record and ask myself “If I were asked to testify for one side or the other, whose side would I want to be on?” There have been many cases where my review tells me I have been contacted by the “wrong side.” When I inform the inquiring attorney – either plaintiff or defense – of my findings, I have encountered nothing but gratitude. Plaintiff attorneys appreciate an honest opinion, especially if it would save them the time and effort of prosecuting a so-called “frivolous” case. And defense attorneys like to know where their case is weak in order to plan a course of action. And when giving testimony about a case and asked about my experience as an “expert,” I take great pride in responding that I provide opinions to both plaintiff and defense. I believe my credibility increases.
Bad things do happen to good people, both doctors and patients. Given that this is the “way we do things” I do not want “hired guns” reviewing my work or that of my colleagues. Each patient and each physician, both plaintiff and defendant, deserves to have their situation reviewed by a physician whose training, experience and practice situation is most similar to that in which an alleged mistake was made. As a community-based ER doc, I would prefer this if I were a physician defendant (and I have been). And as a patient or family member who suspects that something less than the standard of care was provided, having a real-life doctor review the matter is only fair. While academicians or “hired guns” clearly have been able to influence cases, I believe that their dissimilar practice experience is sometimes less impressive to a jury (or insurance adjuster) than the opinion of one who has been “in the pit.” Facts are facts, and one’s opinion about those facts should not change depending on whose side one is on. Thus, in providing my opinions, I adhere to the principles of the American College of Emergency Physicians’ Affidavit for Expert Witnesses.
Finally, a word on fees. I am appalled by some of the fees I hear being charged by a few so-called “experts.” As the first person in my family ever to attend college (much less med school), I find it hard to accept that anyone is worth that kind of money. I may be naïve, but I don’t think my opinion given to an attorney should be more valuable than my advice given to a patient. My fees are based on an approximate value of what I have been charged by attorneys for my own personal legal work and the hourly value of the services that I render to my patients. And they are the same for plaintiff and defense.
If physicians don’t stick up for what’s right when things go wrong, or someone thinks so, we have only ourselves to blame.