It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.
For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.
There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom:
A Philadelphia judge said that the act of a defense attorney sending a letter to the employer of a medical malpractice plaintiffs expert is sanctionable.
Philadelphia Court of Common Pleas Judge Jacqueline F. Allen said in an order Monday that upon consideration of the plaintiff’s motion for sanctions against defense counsel Nancy Raynor “for violation of ethical rules, improper conduct and obstruction of justice,” she was granting the motion in part by ordering Raynor to refrain from contacting the plaintiff’s experts or their employers. …
In Sutch v. Roxborough Memorial Hospital, the plaintiff’s allegation is that Dr. Jeffrey Geller of Roxborough Memorial Hospital failed to obtain diagnostic testing that could have resulted in the timely diagnosis of Rosalind Wilson’s ultimately fatal lung cancer. Raynor is Geller’s counsel.
I haven’t studied the papers, but from what I can tell, the what happened in Sutch case is tragically common, and the expert witness’ opinion was not particularly controversial. The plaintiff presented to the emergency department with various airway-related complaints, a chest x-ray was ordered, but the results — showing lung cancer — either weren’t ever read or weren’t ever relayed to the patient’s physician. 18 months later, the patient was finally diagnosed with lung cancer. It’s thus a standard failure to diagnose cancer case, with some hospital “corporate negligence” (a little bit more about those in this post) elements as well.
Somehow, the plaintiff’s lawyer was able to get a local emergency medicine physician to testify on their behalf, prompting the defense lawyer to write to the expert’s employer, the Hospital of the University of Pennsylvania (HUP):
The case involves an acknowledged failure to relay concerning X-ray findings to the patient’s physicians and the patient herself, resulting in a lengthy delay in the diagnosis of her cancer. … Nevertheless, the plaintiff has retained one of Penn’s emergency room physicians … who has offered the untenable opinion that because Dr. Geller ordered the test, it was his responsibility to follow through on obtaining the results and advising the patient of them.
Dr. Porges has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff’s attorneys become aware of it, it could expose the Hospital of the University of Pennsylvania to significant liability.
Before we talk about that, let’s talk about the excuse given by the defense lawyer:
… Raynor said that it is common practice for medical malpractice defense lawyers to be in touch with counsel for local health care institutions about any of their affiliated physicians who would testify as experts in local malpractice cases.
… Raynor argued that if Porges was willing to undergo cross-examination in a trial, she should be able to defend her opinion to her institution.
So the two excuses are (1) everybody does it and (2) we’re just stimulating a fair debate within the medical community.
Rubbish. The letter was little more than an attempt to intimidate a local doctor for daring to tell the truth to a local jury. If, as the defense lawyer insists, the opinion of the plaintiff’s expert physician is so “untenable,” then there is no need to threaten the expert’s standing at her job. It should be easy for the defense lawyer to find their own qualified expert to testify on their client’s behalf, and for that defense lawyer to prepare a withering cross-examination. Lawyers who feel confident about their cases don’t feel the need to resort to dirty tricks.
The medical malpractice system is dependent upon qualified, practicing physicians agreeing to provide their honest opinions in court. If we permit either side to intimidate those experts away, the whole system falls apart. It’s sanctionable, and if a large portion of the defense bar has been engaging in this sort of conduct on a systematic basis, then it’s time for a far more significant level of court involvement.
Thankfully, Judge Allen found the conduct to be sanctionable, ordered the defense lawyer to stop contacting the plaintiff’s expert’s employer, and stayed the full sanctions order pending the outcome of the trial to determine any potential prejudice.
Let that be a lesson to any other defense lawyers expecting to intimidate experts instead of litigating cases on their merits.