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The Dilemma of the Expert Witness

2008; Lippincott Williams & Wilkins; Volume: 121; Issue: 5 Linguagem: Inglês

10.1097/prs.0b013e31816b1a42

1529-4242

Mark Gorney,

Legal Education and Practice Innovations

The hallways of medical conventions and meetings often resound with heated discussions on the role of the expert witness in medical malpractice trials. Specialty societies are demonstrating a growing interest in minimizing the influence of the “hired gun” expert witness in medical malpractice litigation. Much has been written about how to testify. However, little has been said about the most fundamental decision: to be or not to be a witness. The sad fact is that no other country in the world tries medical lawsuits before a jury of laypersons. In every other country, magistrates who preside over cases seek professional advice from a pool of medical experts attached to the court. An expert may be questioned by counsel but has no relationship to either side. In the American system, both sides recruit and pay their own expert witnesses. This arrangement transfers the adversarial relationship between both attorneys to the experts. Our system does something else; it makes advocates of physicians who testify, making it difficult for them to remain objective. More importantly, the high expert witness fees become clear incentives to testify, further clouding witnesses’ objectivity. For the physician considering becoming an expert witness, a review of the medical record allows him or her to decide whether to accept or reject the assignment. If the invitation is from the defense team, and the case is truly defensible, the decision should be easy and the prospect appealing. After all, what doctor would not be pleased to help defend another physician? Even if the case is seen as insupportable, a polite declination may produce disappointment but few, if any, bruised egos. An invitation to act as an expert for the plaintiff brings an array of totally unfamiliar exposures for the physician. Plaintiffs’ attorneys always tell you they do not understand why doctors should have any conflict with testifying in court, much less emotional distress. To them, an accusation of malpractice is routine, everyday business. They say, “It does not mean you are a bad doctor; it just means that you made a mistake. There is no need to get emotional about it!” This attitude reflects total disregard for the effect a malpractice allegation has (win or lose, guilty or not) on a physician’s perception of his or her competence, integrity, self-confidence, and values. By the same token, peer approval holds a very high priority among our colleagues. Our psychological defense mechanisms also block us from accepting that our professional behavior, in any given instance, might have been less than stellar. This defensive reaction is coupled with the conviction that anyone who helps the plaintiff’s team has just bought a ticket to hell. Worse yet, the action is viewed as a knife in the back when it involves a colleague of the same specialty. The nature of the ethical and moral dilemma facing expert witnesses is multifaceted and complex. Suppose the medical records show that the treatment was clearly inappropriate, and its direct result was serious, disfiguring, or life-threatening? Worse yet, suppose you knew that this surgeon had experienced a similar outcome in more than one case? What looms higher in your conscience: obeying your instincts or your devotion to your specialty and your image among your peers? Is the latter that much more important than the prevention of severe damage to an unlucky future patient? There are vast differences in testifying in cases where the issue in question is the result of inherent risk, unexpected complications, or just plain incompetence (Figs. 1 through 3). In the first and second instances, there is far more latitude for uncertainty in the prospective witness. In the third instance, there should be far less. Please examine the photographs of three random cases. Figure 1 shows capsular contracture, an inherent risk usually described in the informed consent. Figure 2 shows a complication resulting in unexpected infection and secondary healing with keloid. Figure 3 speaks for itself.Fig. 1.: Inherent risk: capsular contracture.Fig. 2.: Complication: infection and keloidal scar.Fig. 3.: Postoperative mastopexy. The image speaks for itself.What say you to testifying against someone you know is unscrupulous or incompetent? Are you sure you can always identify the sharp, bright line that defines those parameters? A rational physician knows that medicine is an inexact art. Few argue that patients injured by provable negligence do not deserve compensation. What we deplore are the glaring abuses that occur in the American way of resolving medical disputes. We also find totally unacceptable that “acts of God” are often interpreted as liability in the U.S. tort system. Nonetheless, until the unlikely day when our tort system changes, we need to accept that our system is a truly adversarial one. We also must accept the responsibility of participating in our judicial system with as much integrity as our conscience can muster. Physicians who testify for the defense are also obligated to ascertain that whatever actions the defendant chose to take were within the standard of care and that the results were totally beyond human control. In addition, whatever your testimony is, be very sure you have never held a contrary position to the one you are expressing now, either in an article or, worse yet, in a different case that has slipped your mind. If opposing counsel leads you down the primrose path and then surprises you with printed evidence of what you had previously said to the contrary, just pack your things and go home: you have had it. You may also have torpedoed the side you are trying to help. Finally, let me propose that plastic surgeons asked to act as the plaintiff’s witness need not automatically refuse to participate as witnesses out of fear of besmirching their reputations. This responsibility, however, assumes a different priority: to separate fact from fiction, to know with certainty that the damage is one that was plainly outside the standard of care, and to consider all extenuating circumstances. Most importantly, the expert must consider whether the same event might have occurred had the case been under his or her control. Then and only then can the surgeon decide in the loneliness of his or her mind whether the totality of the situation outweighs the constraints of his or her heart.