The expert

August 6, 2010

Medical malpractice is big business, and there are a lot of players feeding at the trough.

The plaintiff's attorney looked at me and said: "Doctor, it's true that you are being paid for your testimony today, is it not?"

Though it was the first time I had testified as an "expert" in a medical malpractice case, the question from the plaintiff's attorney was not unexpected. My response was: "No, I am not being paid."

"You're not being paid anything at all for your involvement in this matter?"

"That's correct."

"And why is that, doctor?"

"It just seemed like the right thing to do."

The rest of my testimony as defendant's expert was straightforward and simple, as was the case itself. There was no way, from a medical standpoint, that the defendant was negligent, regardless of the results of the care. Afterwards, I was dismissed and left and went home. I later learned the jury had found for the defendant.

A number of years ago, a claim of medical malpractice was brought against me. Thankfully, and correctly, the jury decided in my favor. I knew the expert for the plaintiff more than a bit, and I also knew the expert testifying for us quite well. Whereas the plaintiff's expert testified that he was receiving thousands of dollars for his participation, my expert witness declined any payment.

After my case had ended, I approached the attorneys who had defended me and offered to serve as an expert in my field. I had credentials enough: board-certified, a couple of publications, a prior medical school appointment as junior faculty. Inspired by my own expert, I promised to decline any payment.

Silly me. Naive me. I expected that being a fee-free expert would be appreciated by attorneys and insurers. Quite the contrary. Although my testimony was perhaps more credible when I said I was not being paid, it certainly created a quandary for attorneys and insurers who didn't seem to know how to handle the fact that I would receive no payment at all. Interestingly, they had had the same difficulty with the expert who had testified on my behalf and finally got him to agree to have a charitable contribution made in his name.

Following my first experience as an expert, another case was eventually referred to me. This one resulted in me giving a deposition. Again I declined any payment. The attorneys became even more agitated. "But you have to be paid. That is the way the system works."

I eventually learned that case had been dropped.

I was referred a third case to review and again found no medical negligence and so reported. Again, I declined payment.

And that was the last time I heard from any defense attorneys. My performance as an expert must have been satisfactory if the results of the cases are an indication. I wondered, and wonder still, if the disruption of the normal system that I caused by declining payment was a reason.

Medical malpractice is big business, and there are a lot of players feeding at that trough-insurers, attorneys on both sides, experts on both sides. Imagine if experts testified not for personal gain but because it was the right thing to do. Certainly some physicians dedicated to the profession would testify for a plaintiff in instances of egregious negligence. No doubt others would testify for a defendant in cases lacking evidence of negligence. I am confident the number of cases brought would decrease substantially and the entire climate would change for the better.

But that would upset the system, wouldn't it?

The author, a three-decade resident of Manchester, New Hampshire, practiced full-time emergency medicine for 14 years and then full-time private office-based primary care for 19 years until retiring in 2006.

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