EXPERT WITNESS OUTLINE

The Doctor as Expert Witness involvement in Public Health

The Doctor as Expert Witness involvement in Public Health

Introduction

Medical negligence lawsuits have been growing in both number and size of awards to plaintiffs for many years. In the last few years, however, the effect on physicians, especially surgeons, has become noxious, and record numbers of surgeons are choosing early retirement or abandoning medicine to work in other fields. Tort reform is high on the agenda of nearly every medical association and specialty society.

The villain of this piece is generally believed to be trial lawyers, who profit greatly from huge awards in malpractice cases, often far beyond their injured clients' share of the bounty. The anger of many if not most physicians is directed at the plaintiff's bar, to the extent that they refuse to testify for the plaintiff in any malpractice suit, especially when the defendant is a member of their own specialty.

Yet, there may be problems with this viscerally held position. In providing legal testimony, a physician's primary ethical obligation is to tell the truth as he sees it without bias that favors one side or the other. That may make irrelevant the side of a lawsuit for which a physician testifies. There are many other considerations of course, but there is an underlying vexing question: if a thoracic surgeon regularly testifies in medical negligence lawsuits, does hehave an ethical obligation to serve as expert witness for plaintiffs as well as defendants?

This question was debated at the 50th Annual Meeting of the Southern Thoracic Surgical Association by two of our most esteemed colleagues, both former presidents of the Association and both possessing special expertise in legal issues: Donald Watson and Francis Robicsek. They present their adversarial positions after the presentation of this case, which served to focus the debate.

Doctor Loyall is a cardiothoracic surgeon with a large experience and excellent results in aortic surgery. He has been sued several times by patients who had complications of surgery, usually paraplegia, but also false aneurysms and other problems. He has lost a case only once when, contrary to the merits of the case, a jury was emotionally swayed by the appearance of the plaintiff, an attractive young woman whose right leg was amputated because of a complication after aortic surgery.

Doctor Loyall testifies in negligence cases two to three times a year in defense of other surgeons who have been sued, usually for complications of aortic surgery. He receives a telephone call from an attorney in another state. He hears the story of a 55-year-old man who is now paraplegic after removal of a descending thoracic aortic aneurysm extending into the distal aortic arch. The operation in question was done with a clamp-and-sew technique, with a cross-clamp time of 67 minutes. It was done by a thoracic surgeon who has been in practice for 5 years, after finishing his training at a program that is now on probation for inadequate operative experiences for their ...