Next up was the plaintiff’s emergency medicine expert.
The plaintiff had to change his emergency medicine expert at the last minute. Apparently there was some issue with the original expert having a medical problem where he was hospitalized and unable to testify. Instead, the plaintiff’s retained a young assistant director at a prominent residency training program. This expert hadn’t even finished his training when I had taken care of the patient.
When the expert got up onto the stand, it was obvious that he was nervous. He stuttered when he spoke and he used mostly medical terms, making him difficult to understand. He also had an annoying habit of clicking his tongue when he spoke.
During direct examination, the Grinch kept trying to put words in his mouth. Vinny objected to the Grinch’s questions, stating that he was leading the witness. After the third objection for the same issue, the judge ordered everyone back to his chambers to duke it out.
Once all the lawyers had filed out of the courtroom, I looked over to the jury box. Several of the jurors were watching me – kind of like they were sizing me up. Four of them were looking at me at the same time. I followed Vinny’s advice and just sat there, nodded, and smiled at them.
I started to daydream and glanced over at the plaintiff. She had assumed her usual pose of staring at the other wall with her arms folded. I wondered if she hated me. It upset me a little. On one hand, I wanted to tell her that I didn’t do anything wrong and apologize to her for the loss of her husband. On the other hand, I wanted to sue her pants off for filing this lawsuit against me. The dynamic tension between these two feelings kept me sitting in the seat taking notes and looking introspective.
Everyone returned from the judge’s chambers and examination of the emergency medicine expert continued. He was disorganized, he spoke very softly and he was difficult to understand. The Grinch finished up his questioning of the expert fairly quickly.
Then Vinny stood up and buttoned his jacket.
Vinny quickly established that the expert was unfamiliar with the chart. In fact, the expert admitted that he had not even seen the paramedic’s note that seemed to be one of the lynchpins of the plaintiff’s case. He accurately described the signs and symptoms that someone presenting with the patient’s disease process would have. He admitted that the diagnosis was elusive and stated that a surgical consult was necessary once the diagnosis was established. He also stated that he had only seen one patient with the same disease in his whole career.
Vinny got him to agree that pretty much all of my care was appropriate and my attempts to stabilize the patient were also appropriate. Vinny would ask him if it was appropriate for me to do one thing, the expert would agree. Then he would ask the expert if it was appropriate for me to do something else. The expert would agree. The expert didn’t dispute more than 10 of Vinny’s similarly leading questions.
When Vinny asked him whether I had met the standard of care, the expert replied that “a surgical consult should have been obtained.” Then he corrected himself and said “when the diagnosis is entertained, a surgical consult should be obtained.” He agreed that the patient had an unusual presentation of the disease, but said that when the tests all came back negative I should have consulted the surgeon. He stated that all of my management of the patient up to that point was within the standard of care. There was only a delay of about 20 minutes between the time that all of the tests came back and the time I contacted all of the consultants … including a surgeon. The expert never really came out and said that I violated the standard of care.
Finally, Vinny got the expert to contradict the previous expert by stating that the patient had signs of sepsis before he even came to the emergency department. In fact, this expert stated that the patient had signs of sepsis for more than a day before he got the hospital. He admitted that the patient’s prognosis was poor before I ever saw him.
“That’s all I have, your honor,” Vinny stated confidently.
Vinny walked back to the desk and whispered back and forth with the hospital attorney for a few seconds. Vinny had a stern look on his face when he was whispering. The hospital attorney decided to forgo questioning of the expert.
Later, Vinny would chuckle about the expert’s testimony, stating that he helped us as much as our own experts did. “Hell, we should have retained him for our case,” he quipped. “I could have gotten him to confess to JFK’s murder while I was at it.”
On redirect examination, the Grinch got the expert to reiterate that the patient had multiple signs and symptoms consistent with sepsis when he arrived in the emergency department and that I should have picked up on it immediately. He also got the expert to reiterate that the standard of care required a surgical consult to be called when the patient’s diagnosis was “entertained.” Even though we had already blasted the whole CT report theory, the Grinch got the expert to agree that if I knew about the diagnosis when the report was dictated, I should have called the surgical consult earlier and that an earlier surgical consult could have been the difference between the patient’s survival and death.
“No further questions.” The Grinch stated.
The judge called a 10 minute break and excused the jury to the break room.
That reminds me …. every time the jury is excused, everyone in the courtroom is supposed to stand up. When you stand up and wait for everyone to leave, where are you supposed to put your hands? If you put your hands in front of you and fold them, it looks like you’re playing with yourself. If you put your hands in your pocket, it looks like you’re trying to hide the fact that you’re playing with yourself. If you put your hands behind you, it looks like you’re under arrest. If you put your hands on the table in front of you, then you look like Beethoven playing the piano or like you’re going to fall over. If you leave your hands at your sides, it looks like you’re standing at attention. I opted for the overt playing with yourself look. And dammit I keep forgetting to stand up when the jury leaves. Louise seems to take great joy in quickly standing up and then kicking my chair while I’m writing things.
As the expert walked out of the courtroom, I followed him out into the hallway. I called his name, and he kept walking. I called his name again and ran up behind him, asking him to hold on for a minute. Before I said anything, he turned around and was visibly shaking.
“Look, I’m really sorry…”
I cut him off.
“Listen to me. For the past two days I’ve sat there and watched the family and the other expert tell lies and half truths about me and about the care that I provided. You sat up there and you told the truth. You don’t have anything to be sorry about. I just wanted to thank you for being honest.”
“No hard feelings.” I held out my hand. “Really … no hard feelings.”
He briefly shook my hand, but still wouldn’t look me in the eye. Then he turned around and walked briskly down the hall.
As I watched him go, I wondered how he’d describe his experience to his family and to the residents he was training.
Probably not at all.
Even truthful testimony against another doctor isn’t something that many doctors are proud of.
—
See previous posts in this series here.
What, 9 more installments to go? WC, things are definitely going your way now.
Class move there, what you said to the replacement consultant. Wonder if he’ll ever do something like that again.
Ditto what Davey said — you really show the type of person you are by trying to put the “expert” at ease. Commendable.
Gotta say that my morning had a rough start to it: internet service down, coffee late to brew. By time my internet was up & running, your latest installment was up, and I got to read it while savoring coffee & biscotti. It’s the little things in life…
“Even truthful testimony against another doctor isn’t something that many doctors are proud of.”
Which is a shame. The civil justice system exists to resolve disputes between parties in a fair and just manner; it can’t do that if necessary actors won’t cooperate.
As for your hands: to keep them from moving around awkwardly, you need to give them a job. Your hands’ job is to lightly touch your pants.
“Which is a shame. The civil justice system exists to resolve disputes between parties in a fair and just manner; it can’t do that if necessary actors won’t cooperate.”
Given all the half truths and trickery that has been posted so far, it is interesting that you have only pointed out the bit that would help your profession (which google says is a lawyer) if it was changed.
Remember, Adam, you’re only hearing one side of the dispute. Were you to be listening to the narrative of the other side you would have a totally different perspective. There are always at least two sides to every story.
And what Max is saying is that we need physicians to be willing to testify when another physician commits malpractice. Otherwise, we all lose.
“Remember, Adam, you’re only hearing one side of the dispute.”
I never forgot that. For all I know WC is an incompetent, lying fool. For all I know he isn’t a doctor and this event never happened – Samuel Clemens comes to mind.
My point was that of all the odd things that have been described it is noteworthy that the only thing Max (a lawyer) pointed out was something that would help him to sue more people and obtain more work.
Max has been silent on anything that might be considered unfair to defendants or should just MAYBE be changed. Not sure if you have – you post too much for me to read.
Such a stance is as scary as docs who think they should be immune from anything and everything – and the boards that back them. Your previous link comes to mind:
http://www.washingtonpost.com/wp-dyn/articles/A39677-2005Apr9.html
Adam, I don’t understand your “interesting” point, nor do I see how it “helps my profession” to say that the civil justice system, including the malpractice system, requires the cooperation of experts in order to function.
If the things I “point out” really matter to you, check the comments following the post about the first plaintiff’s expert. There I wrote that the whole trial looked like a waste of time given that the primary plaintiff’s expert was unqualified on the subject matter and ill-informed about the facts.
I don’t see how that’s “silent on anything that might be considered unfair to defendants;” it’s nothing less than an opinion that WhiteCoat should have prevailed as a matter of law.
“The civil justice system exists to resolve disputes between parties in a fair and just manner; it can’t do that if necessary actors won’t cooperate.”
It also can’t meet that goal if hired guns like the original consultant, with dubious credentials, are allowed to testify with impunity. Juries see the abbreviation “Dr.” in front of somebody’s name and automatically assume global knowledge of medicine.
Dave – have you ever seen an expert “voir dire” at trial?
It takes about 15 minutes for me or a defense lawyer to slice an opposing expert down to their narrow specialty and their experience, and it happens before the expert gives any opinion at all to the jury.
If the expert tries to run astray from that specialty, I get to jump up, interrupt the opposing lawyer, and remind the jury that the guy has no idea what he’s talking about, after which the judge instructs the jury that the guy has no idea what he’s talking about.
” Juries see the abbreviation “Dr.” in front of somebody’s name and automatically assume global knowledge of medicine.”
Would you assume that? Do you think you’re smart enough to have it explained to you exactly what they do know and what they don’t know, and give their opinions the appropriate weight?
If you can, why can’t anyone else?
And every expert is going to be paid. Would you prefer they work for free? If someone asked you to testify in your area of expertise, would you review a file, undergo a deposition, and then undergo direct and cross examination for nothing? Would that make you a “hired gun”, just like the experts on both sides of this case, and mean your testimony was worthless?
I look forward to the following soon to be posts:
1. doctors claiming that no docs should ever be allowed to be sued no matter what
2. lawyers in the group defending the system and refusing to admit there could possibly ever be anything wrong with it – other than it should be easier to sue people.
We are all nothing if not consistent!! Ain’t it great?
1. No doctor, nor physician’s group, has ever stated this. What we are, and have been, asking for is a “resetting” of the bar. A physician who operates drunk, removes the wrong limb, and changes records to cover their track should be sued, and should lose badly. However, putting physicians, especially emergency physicians who are obligated to treat anyone who presents at their facility or the specialists backing them up, on the same standard as government employees (a “willful and wonton” standard) would be what is sought. That way, if there is a major screw-up, the patient is compensated. If there is a mis-judgement with the best of intentions, the physician is immune. That is fair.
2. Lawyers will always defend the system they’ve built. If the standards go up, it is harder for them to take the “big risks” to get the “big rewards”. Like any othr gambler, they want the best odds possible.
Government employees are not on a willful and wanton standard.
But I say if your average semi truck driver makes a misjudgment on whether or not he can make that corner at that speed, and the rollover lands on Fry’s car, he ought to be immune as well. It’s just as fair as if he comes into Fry’s emergency room after the wreck and Fry’s negligence kills him.
As for lawyers making the big bucks, well, we only make 2/3 of what physicians make on average, and only 40% of surgeons average. Looks like physicians are trying to make their big bucks just a little bigger with all this “reform”.
“Government employees are not on a willful and wanton standard.”
In my state, police, fire and EMS are. Why not the other “emergency services” workers?
Become employees of the government and you will be. Take all the tradeoffs that come with that and you will get the benefits.
I bet it depends on the circumstances under which they are acting, it’s not a blanket. For example, many (not all) states will give that protection to police in pursuit provided they have a policy and they follow that policy.
Again, the defense lawyer wants a trial to break even on the case. He will never do anything to truly deter the plaintiff witness.
WC was a good sport with an enemy of clinical care, giving false testimony. There is an affirmative duty of the innocent defendant to deter unprofessional conduct. Whatever the lying judge claims that the testimony is not the practice of medicine, he still needs to suffer unending agonies to prevent his future false testimony, and to deter others.
Testimony is not the practice of medicine, as in the formation of a doctor patient relation, I agree. It is the super practice of medicine, where arrogant, inexperienced, academic doctors tell the doctors of the state how to practice at the point of a gun. These clinicians are senior to the experts in every way conceivable way. There is also an affirmative duty to terrorize the collaborationist defense lawyer, into attacking the plaintiff lawyer relentlessly to drive him out of the state to protect clinical care. John Edwards illustrates the super toxic effects of unanswered assaults on clinical care, single handedly increasing the rate of C-sections in North Carolina, harming thousands of wheezing babies with life threatening diarrhea (a high risk among C-section babies).
Hmm. Lawyers get paid less than doctors? Makes sense to me. After all, I’ve never heard “What this country needs is more lawyers!” I have heard that about doctors, though.
I think it speaks well of your character that you extended your hand to the witness. At least he was being truthful.
I wouldn’t have thought anything of your hands resting in the front. i think it’s just a masculine stance men take when they are standing… and would look the best in that situation. While it calls attention to that area… I never thought they were engaged in that activity… but now… it will come to mind.
I so very much relate to your conflicting feelings when looking at the one causing the problem. You are a kind person who was seriously wronged and I think when you are a genuinely nice person…it is sometimes hard to turn that off.
Every time you say *Vinny*… I am picturing *Vinny*.
As in “dem two yutes”?
LOL!!!!!!!!
If you didn’t already describe the blond… I’d be picturing his cousin assisting.
I also Loved him and partner in Home Alone… can watch it over and over.
Especially the pizza scene when the pizza delivery boy and Pesci’s partner in crime cant run away on the ice fast enough when they think Snakes is getting wasted with bullets… and of course the rest is hilarious too. 
The angrier Pesci got.. the harder I laughed, also when his partner screamed like a girl when the tarantula crossed his face.
Okay… so now I want to dance and see a funny movie!
#17 Please!
Matt, after reading many of your posts, one can only conclude you are [biased]. Plain and simple. I say this as someone who doesn’t often resort to name calling. Your defense of the legal system, your persistence in posting over and over and over, is tiring and over the top.
If your goal is to single handedly improve the public’s perception of med mal attorneys, you will fail miserably. “There are two sides to every story” Yes, we all realize this. But there is no denying the way malpractice claims have destroyed medicine. I can’t tell you how many times over the course of my training litigation risks were brought up in lectures and in day to day clinical teaching.
“No need for tort reform, let us foxes continue to guard the hen house. Nothing to see here, move on along.”
Give me a break.
You should also add [someone who] has too much time on their hands to post as often as he does…
EM, you are absolutely right I’m biased. I have no interest in favoring insurers even more over individuals. I am not, however, a med mal attorney. I have handled two med mal cases in my life, both clear liability settled pre-suit.
“But there is no denying the way malpractice claims have destroyed medicine. I can’t tell you how many times over the course of my training litigation risks were brought up in lectures and in day to day clinical teaching.”
If you read my posts, I have agreed with you that I have no doubt they are. What I have disagreed with is whether the changes made sense given the risk. I have yet to understand why physicians take actions to reduce a risk when they don’t know the level of risk or whether their actions actually reduce it. That makes zero sense to anyone with a little common sense, and I expect it does you too.
You guys keep telling us we “need” tort reform, gotta have those caps, and if we do we’ll get one or all of the following: Cheaper healthcare; more specialists; less defensive medicine; etc. Yet after 30 years of “reform” in places like California, it’s clear that you’re either intentionally lying to save a few dollars on your insurance premium, OR you’re being duped by someone else yourselves.
The other amazing things is that none of your malpractice “solutions” involve improving the quality of care. The thing is the #1 way to reduce claims is to have better communication with your patients. Study after study have shown this. You’d think you’d be working on getting paid differently so you can give that communication. But you don’t. Why? It makes no sense.
The amazing thing is that your practice is in the process of being completely taken over by the federal government RIGHT NOW, but you worry more about the tiny chance you might be sued, and the even tinier chance you might lose, and the infinitesimal chance you might have to pay a judgment out of your own pocket. Your malpractice premiums are less than 10% of your overhead, but how you get paid is HUGE, and you’re worried about malpractice? Again, it’s a failure to properly assess your risks.
I’m sorry you find it offensive to point out easily verifiable facts. Not from surveys, but from studies performed BY doctors when it comes to how to reduce your risks.
go check out kevinmd.com and click on the comments of any posts concerning medical malpractice. he’s all over that site too! any probably many more that we’re not aware of.
how is this guy finding time to study for his law degree when he spends so much time posting on doctor blogs?
I retired at a young age thanks to smart financial planning. Weird how you guys spend so much time worrying about me personally rather than the complete overhaul of medicine underway in Washington.
Matt: When you say, government, what is that? That is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. It is the wealthiest and most powerful criminal syndicate in history, making 99% of policy for the government. The elected official is a figurehead that decides at the margin.
The idea that the government, which is lawyers, will tell doctors how to do their jobs is an impossibility. The counter measures should begin with boycotts of lawyers by all service and product providers. After the next terror attack enabled by the terrorist lovers in charge of our security, the hierarchy gets arrested, about 15,000 lawyers. They have one hour fair trials, then they should be shot in the basement of the court. The sole evidence would the content of their laws, decisions, and policies. There would be no lawyer gotcha on any collateral corruption.
This indoctrination is so good, you have no idea what I am talking about. However, they made you believe in supernatural core doctrines unlawful in this secular nation. You did not even know it.
For those who believe tort reform and further screwing the injured will reduce healthcare costs, despite the fact that three decades of it have shown you to be wrong, if you’re interested in reducing those costs, here’s an article you might want to take a gander at:
It seems paying physicians differently is a CLEAR way to reduce costs:
http://www.nytimes.com/2009/07/25/health/policy/25doctors.html?_r=1
Matt: How old are you? If you are over 40, an organ has started to fail every couple of years. Your body will be the best and most dramatic theater you have ever experienced.
The Britts have docs on salary. They make $90K a year. Come hell or high water, they go home at 5 PM. You have an ice pick sticking from your skull. That sounds like an emergency. Waiting time for emergency surgery? 6 days. Waiting time for surgery for painful, agonizing conditions? Months. Waiting time for elective surgery? Never. You will die with your condition.
As a patient, that is an awful idea.
When you go to the Cleveland Clinic, you get the works, because the rent seeking doctors still have to generate more income than their salaries and benefits. It is the mother lode of defensive medicine. Its doctors? Of great variability, disabled, or cannot do any better. If you are a good cardiologist, and attract massive volumes of patients, generating $1 million, why would you ever take a job for $250K, where everyone else is your boss? You have to be disabled, stupid, have a personality defect, or be a female who needs to pick up her kids after school.
How about limiting all law partner salaries to $90K?
Hey, I’m with you. I think docs ought to have all the freedom in the world to be compensated in whatever manner they see fit. For the life of me I don’t understand why they all agreed to be paid at the same rates regardless of their individual skills. I’m no fan of single payer.
However, when I see the docs largest lobbying organization getting on board with Obama, and I don’t see much in the way of an organized voice from any other physician groups, it appears the writing is on the wall. Which will also make our malpractice discussions a moot issue as well. When they screw up physicians will be held accountable by some byzantine bureaucracy which will probably “score” them in some way and dock their salaries for too many bad scores.
If nothing else, I’d suggest docs quit spending so much time trying to screw over the already injured by denying them their right to a trial, and start focusing on Obamacare.
But they don’t seem very inclined to do that.
I do not differentiate between Commie Care, medmal, or insurance companies. All are lawyer oppresion. All are enemies to clinical care. All must be made to pay for their attacks on it. None has any legal recourse. And all out patient self-help has full moral and intellectual justification.
“Even truthful testimony against another doctor isn’t something that many doctors are proud of.
Which is a shame. The civil justice system exists to resolve disputes between parties in a fair and just manner; it can’t do that if necessary actors won’t cooperate.”
Only a lawyer could respond this way. A physician has had the experience of staying up for 36 hours straight, of taking care of 35 patients at a time, of having to deal with the the trainwreck patient at 3 AM who has a fever or chest pain but can’t describe their pain, can’t state their medical problems and says only “I’m allergic to something,” all while the minutes tick and the blood pressure drops. A physician knows what it is like to miss anniversaries and to watch most of their 20s and 30s disappear into a haze of endless call nights. A physician has seen some of the smartest, most caring, and most dedicated get sued for things that are often beyond their control. A physician also knows that medicine is an art. Test results are not positive and negative as the public seems to believe, but instead merely increase or decrease the likelihood depending on sensitivity and specificity. A physician realizes that most doctors work very hard and truly care about their patients, and they all have made mistakes multiple times. They have enough personal experience to realize that lawsuits are not just a matter redistributing “harm” from one party to another. They are stressful, they destroy the fragile confidence needed to take care of patients, they can threaten a career, and they can ruin years out of a doctor’s life. To the doctor they are not some law school theory, they are painfully personal. The current system is nothing more than a lottery where dishonest experts testify and the personal appeal of the plaintiff matters as much as the medicine. Trials are frustrating because medical acumen and knowledge that has taken a decade of training to develop is torn apart by people who don’t understand such basic concepts as sensitivity, specificity, and likelihood ratios. So regardless of whether the doctor being sued was wrong or right, I will always have empathy for them because I have practiced medicine. People who are injured need some protection, but the vast majority don’t get it from the current system. A few plaintiffs get lucky, but most people who are injured get nothing. A workers-comp system would be much better.
And you say that getting sued is a rare event that hardly is worth worrying about because the risk is so low. Maybe in some specialties, but not in many. For emergency doctors the threat is very real.
And if you think the risk of getting sued is low, imagine how you would feel if you could get sued every time you misspoke and the objection was sustained. I imagine you would feel very differently if you were getting sued for “forgetting” to disclose some evidence.
PS lawyers don’t make as much but they also don’t have half the training that doctors do.
matt: You always talk about the AMA. It is irrelevent. I think less than 30% of doctors are members. Of those 30% most probably don’t agree with it. Most doctors are just busy working, taking call, and trying to cover overhead. That is why they are not organized. Yeah it looks like government is going to swallow us up because we are willing to work for peanuts and maintain obligation to patient care compensated or not. Soon America is going to get DMV/VA type health care. Maybe we will organize and strike. Lawyers will probably not allow it. Me, I am just going to retire. I feel really bad for new grads and future patients.
Dirk: If you are close to retirement, you must also be a patient. Commie Care is a physical threat to your continued existence. You must join with other patients to take direct action against the lawyers, and their Commie Care. For every patient that dies from denied care, how about 10 knee capped lawyers?
They would love it if their competitors were killed, because of their pestilential oversupply. I oppose killing any lawyer. Just give them a permanent injury so they may join us patients in Commie Care line.