Last Word

March 18, 2005

Why I'm a plaintiffs' expert

When I was approached about 10 years ago by a representative of our state medical association and asked if I'd be interested in serving as a plaintiffs' expert, I was dumbfounded. I couldn't believe that anyone on "the doctors' side" would want to encourage more plaintiffs' experts. After some discussion, however, the reason for his request became clear: If honest practicing physicians aren't willing to review cases for plaintiffs' attorneys, they'll turn to "hired guns" who sell their opinions to the highest bidder.

Once I decided to make myself available, I sent letters offering my services to plaintiffs' attorneys in my own and neighboring states, thinking I might review a few cases a year. But my letter-the only advertising I did-apparently spread quickly throughout the country. To my surprise, within five years I was reviewing nearly 100 cases a year, and eventually I had to start turning some away. Because I have a busy private practice, I did my medicolegal work only in my spare time, on weekends, and what had once been my "day off."

At first, I received a few calls from unethical attorneys. But the word soon spread that I would give only an honest opinion, and, in general, I've found that most plaintiffs' lawyers have no interest in pursuing a frivolous case. The reason is obvious. By the time a case gets to trial, it can easily cost $25,000 to $50,000, which the attorney must advance out of his own pocket. If he loses, that money is gone.

By now, defense attorneys know that if I say there's evidence of malpractice, I'm probably right. That's why only about 5 percent of the cases I review ever end up in court. With most, either the suit is never filed, or the parties reach a settlement without going to trial.

One problem with serving as a plaintiffs' expert: I have to be willing to testify against the physician in court-which I don't enjoy. Except in the most egregious cases, there's no pleasure in sitting in a witness chair and accusing a colleague of malpractice. But I have to do it if I want to maintain my credibility.

By carefully screening out meritless cases, I've probably kept hundreds of innocent physicians from being sued. Many of those cases involved failure to diagnose cancer. As a practicing oncologist, I was able to point out that some cancers-of the pancreas, for example-have an extremely low cure rate regardless of when they're diagnosed. In other cases, such as early chronic lymphocytic leukemia, early treatment isn't critical.

By now I could write a book on why doctors get sued. I've reviewed dozens of cases, for instance, in which patients have died from preventable clerical errors. It might be a critical report-like an abnormal chest X-ray-that gets filed without the physician seeing it. Then there's the common problem of missed follow-up visits. If you tell the patient to come back for a checkup in three months and she never returns, you're probably not liable if something goes wrong because you never had a chance to catch it. But that's only true if you carefully documented those follow-up instructions.

Many doctors make the mistake of recording what they do when treating a patient, but not why. Remember, you don't always have to be right, but you do have to be reasonable. That's why it's so important to document not only what you do or don't do, but also the thought process behind your decision.