For those of us that do medical malpractice litigation it is quite disappointing to see the extraordinary lengths to which defendant doctors and hospitals will go to avoid responsibility. A recent deposition I went to provides a good example of a obvious attempt to intimidate plaintiff’s expert doctor from testifying about malpractice.
The plaintiff bled to death after routine gall bladder procedure. The negligence in the case was, in my opinion, obvious. You shouldn’t end up bleeding to death over gall bladder surgery – unless there has been negligence.
This opinion of mine was confirmed by a respected General Surgeon, who is also a professor of medicine and surgery at the University of Nebraska Medical Center. The defense lawyer recently took his deposition. During the deposition the defense lawyer used only one Exhibit – a magazine article. The Article, published by a physician who is strongly against malpractice litigation, and his wife, an attorney who defends doctors charged with malpractice, was nothing less than an attempt to intimidate the our expert witness from testifying at trial.
The article said that the economic realities for most physician’s income are such that they must supplement their income from practice by testifying as an expert witnesses. The article then discussed at length an unusual decision in which a neurosurgeon was suspended from membership in the American Association of Neurological Surgeons because he served as an expert and gave testimony in favor of a plaintiff in a medical malpractice lawsuit. The article went on to cite chilling examples of other lawsuits and disciplinary proceedings against physicians who testify in medical malpractice cases.
The article plainly stated the view to which it aspired: recent decisions of courts, medical boards, and physician organizations, are penalizing doctors for testifying in medical malpractice cases, which will hopefully result in expert witnesses who testified for plaintiffs becoming an endangered species. The article called for medical licensing boards and physician’s specialty organizations to impose rigid scrutiny, and more professional discipline, on doctors who are willing to testify against other doctors; it proposed state laws that impose difficult limitations for expert medical witnesses to be allowed to testify; and, finally, it cited a medical board decision from another state where a doctor’s license was suspended for giving expert testimony in the courtroom regarding the medicine in a malpractice case – medicine which all physicians agree is an “art” and not always a science.
This article had nothing to do with any of the issues in my client’s malpractice case. The defense lawyer brought it to my expert’s attention, and went over it with him in depth, for just one purpose: to make him think twice about serving as an expert witness for the plaintiff in a medical malpractice claim against another doctor. In less socially acceptable terms, some would call such conduct an attempt to intimidate a witness.
This time it didn’t work. You have to wonder how long that will be the result of such tactics.
By Gary Craw, Gaddis, Kin & Herd, P.C.
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