More From Freud 99

In a recent post I set out in their entirety the comments of a doctor who told us of the fear he has testifying on behalf of plaintiffs in medical negligence cases.  He has written back – and here it is:


NOTE:  there are a bunch of unusal characters in the email.  I received the email in this format so I assume that something got scrambled in the transmission over the Web.  It is being published as it was received.


Hello again,

I’m the doctor who wrote previously and whom you quoted.

Though I don’t want to get into an extended debate on this, let me respond to a few of the comments.

First, you’re right that I should be willing to contact my representatives. I did send an email to my Congressman several years ago when we were in the midst of another round of furor over the “malpractice crisis”. I don’t remember precisely, but I believe I stated that I practice medicine in his state and though I do worry about malpractice suits and I would not be pleased to be subjected to one, I believe that the “crisis” has been exaggerated and that the focus should really be on reducing the mishaps that actually occur in medical practice. I think I also pointed out that in 20 years of practice I do not even know another physician who has ever lost a malpractice suit. I do know several who have gone bankrupt because they could not manage their practice to keep up with changes in managed care rules. Probably there are some that I don’t know about, but I don’t see it as a big problem. I think I made a few other comments about whatever was being proposed at the time.

About a month later a letter arrived from the Congressman. It started off “Dear Doctor….” so someone read my letter to that extent. But then it went on to say something like the following: “Like you, Congressman X is very concerned about problems caused by the current malpractice crisis. He is working closely with the AMA to find solutions to this problem that will be fair to all concerned.” So much for a meaningful communication with my congressman. But that doesn’t mean I shouldn’t try again.

Regarding Tony Duncan’s compliment (“That took a lot of guts”), I wish I had more “guts” (other than the physical guts that my belt is struggling to hold in. I wouldn’t write anonymously if I had more of the good kind of “guts.” But most people who write about sensitive or controversial issues on the internet actually should be careful. For example, if I do ever want to give depositions in cases again, it’s not going to be very good to have a paper trail of opinions about malpractice splashed over the internet. And if I get sued myself, it could complicate my defense regardless of what I say. Will Rogers once said “Never miss an opportunity to keep your mouth shut” and I hope that a few online comments aren’t too serious a violation of that rule.

Also, I agree with Tony Duncan’s other comments. Patients’ rights are important. I’m not only a doctor but I’m a patient too. Fortunately I’m not in the midst of any serious medical problem right now but we all will have them some day unless we just quickly drop dead. Through the years my family and that of my wife has had a moderate number of serious medical problems. There were a few incidents in which the medical care was really bad and in one instance it lead directly to a serious harm, e.g. my father-in-law’s death. We could have sued but no one in my family is really into suing. Almost 1/3 of the adults over 30 in our family are physicians and close to ½ are attorneys. Interestingly, the only members of our family who have ever sued anyone themselves are a few of the physicians, and then not for malpractice. My father-in-law was almost 90 and he didn’t have that many years left in him. That’s not to say that the lives of the elderly are not important, but when a person is extremely frail a small error is more likely to cause great harm. I think a significant percentage of the 100,000 (or even 200,000) deaths induced yearly in hospitals by medical mistakes are similar to the case of my father-in-law. If you admit a really old, frail person to a hospital enough times, he or she is very likely to die during one of the admissions, sometimes due to a mishap that probably could have been avoided but which would not have killed the average person. In any case, I mention that case only to show that I’m not an advocate of suing over small provocations—not even over a case in my own family resulting in death. But there are situations for which I would sue my physician or my family member’s physician and I don’t want to lose the ability to do so because of restrictions that are crafted just to reduce the number of lawsuits.

In reply to “RADICULOUS,” I disagree. I believe that if unbiased fair-minded persons were to examine what these review boards were doing, the majority of observers would come to the conclusion that they were bent on an agenda of punishing expert witnesses to suppress malpractice suits. Typically only plaintiff witnesses are even reviewed. This is, of course, almost inevitable because in most cases a person must be a member of the specialty society to even bring forth a complaint. Some may field complaints from others. But in any case, they have complete discretion over which cases they pursue. I have read the information about one of the most publicized cases, the Fullerton case. As far as I can tell, Fullerton did absolutely nothing wrong. He simply testified and gave opinions that seem very respectable and credible. Not everyone would agree exactly with his opinions. But this is what happens in lawsuits. The experts will differ and that does not mean that either one of them is doing anything wrong. The fact that there even exists this quasi legal mechanism whereby a medical society can attack him and hope to evade the consequences under the veil of peer-review immunity is more frightening to me than the whole issue of malpractice suits. I’m hoping he wins and gets millions and millions of dollars from each and every member of that board. If he put out a request for donations to pay his legal bills, I would probably give him some money.

Many aspects of so-called malpractice reform are not very fair. Consider the time limit to file a lawsuit. As I mentioned, my family and I have been blessed with pretty good health. But we have been sick. When you are discharged from the hospital having been treated for anything serious, I can tell you that for the next six months you are doing little else but sorting through the bills, a large percentage of which have serious errors almost all in the hospital’s favor. You don’t even regain your equilibrium for about a year even if everything has come out all right. If there is to be any just and fair adjustment on the time limit to file a lawsuit, I would think that it would be most fair to add a year to the time allowed for any other type of suit. Reducing the time is not done in the interests of fairness or justice. This is done simply because the AMA and other physician groups have pressured the legislatures to enact these time limits.

Likewise, many of the rules which have either been enacted or proposed to restrict availability of experts have nothing to do with fairness or justice. An expert is supposed to be a person who knows a lot about the subject. Why does an expert have to spend at least 50% of his time practicing? These percentages do not mean very much anyway. I might spend 30% “actually practicing” (i.e. seeing patients face to face) and an equal amount of time writing up or studying about the cases. So is that 60% or 30%. Or what if I spend 100% of what I consider my practice on seeing patients, but I am also doing other things. Are we talking about a standard 40 hour week. Not everyone even structures his or her time the same way. One person might see 30 patients a week and consider that 100% time. Another might see 150 patients and consider that 75% time. I can understand a requirement that a person is actually continuing to practice and seeing cases similar to the case being litigated, but the imposition of arbitrary percentages or numbers serves no purpose that has anything to do with justice. Likewise, it is ridiculous to require that experts balance their plaintiff and defendant work. How does that make them more knowledgeable about the subject. If we had real honest malpractice reform we would eliminate every one of these restrictive requirements that have been recently enacted in many jurisdictions.

Finally, there is a little mentioned aspect of this question that pertains to the harm that might be done to physicians by attempts to regulate their speech. Do we really want to have our opinions that we give outside of the usual medical setting to be considered to be medical practice? Am I the only one that sees many potential adverse unintended consequences from this.

If offering my opinion in court is medical practice, isn’t it also medical practice for me to present grand rounds at a medical center and give my opinions about cases that may even be current cases still being treated. If I am invited to, say, the University of Tennessee to speak on myocardial infarctions and I comment on cases currently in their intensive care unit, can I be hauled into court for that? Do I need to get a temporary Tennessee license to come there and speak? Will I get adversely reviewed by the Tennessee Medical Society if I give my opinion that drug X is not very good for angina, but all the members of the committee own stock in the company that makes it?

And how about the numerous doctors who go around touting drugs in the employ (sometimes the indirect employ) of various pharmaceutical companies. If I go to Indiana for five thousand dollars and a nice weekend at a fancy hotel and tell some of my fellow doctors that Plavix is really great and review all the literature in favor of it, am I practicing medicine in Indiana without a license? Well let’s compare this to testifying in court.

In the courtroom, the medical case is already over. Often the patient is dead. A very limited audience hears the testimony and it is unlikely to directly influence any existing cases. When speaking for a drug company other doctors almost alway ask for advice about current cases. They are very likely to act upon the suggestions of a so-called expert (an expert as defined by the drug company that is paying him or her). Sounds to me like the speaker for the drug company is practicing medicine a lot more than the expert in the court room. Sounds like he or she needs to be licensed by the state for that activity.

Also, consider that for the courtroom expert, there are at least in theory the Daubert rules that aim at restricting “junk science.” Also, at least in theory, an errant expert can actually be prosecuted for perjury. Apparently there is currently one physician, a cardiac surgeon, being prosecuted for perjury in Florida. He was a plaintiff’s witness. I am not really familiar with the case, but I would say: “If he lied on the stand, prosecute him for perjury. That’s what the law is for.” If anything this proves that testimony already has an existing corrective mechanism built in. But where is the corrective mechanism for the physician serving as a shill (oops, I mean “thought leader”) for the pharmaceutical companies? It sounds to me as if all of these statements made by physicians, except possibly the ones made in court which are already supervised by a judge and given under the possibility of prosecution for perjury, need to be considered medical practice and regulated.

And perhaps this will happen. But I certainly don’t want every word that comes out of my mouth to be considered part of my practice track record. I’m afraid that’s where this is all leading and it is going to be very unpleasant and objectionable to physicians. It is very hard to believe that we can consider courtroom testimony to be medical practice and not consider speaking, writing articles in journals and textbooks, and advertising medications for drug companies to be practice as well. If there is any difference between these activities, the courtroom testimony or the depositions would be the last thing that I would consider to be medical practice. In addition, it’s not going to take long for the trial lawyers to figure out some mechanism to start hauling the defense experts in front of some kind of board in order to punish them. In fact, I would predict that one upshot of this is going to be a more vigorous effort by plaintiff attorneys to track what defense experts say with the intention of getting some of them prosecuted for perjury.

A few years, a neurologist serving as a defense expert in Massachusetts allegedly was caught lying. The judge decided that his testimony constitute “a fraud on the court” and ordered him to pay the fees related to a new trial of the case. Interestingly, this was later overturned on appeal. Though the appellate judge found the defense expert’s testimony disturbing, he did not feel it merited the sanctions given. I personally find it disturbing that the sanctions were overturned, but it is rather hard to prove that someone deliberately lied and there should be a rather high level of proof required for such a thing. I can almost guarantee you that if such a thing were done by a plaintiff’s expert, that expert would be disciplined by his or her professional society. At least the legal system went through a process attempting to discipline the doctor. Perhaps wisely, it decided that no discipline was needed. Of course his medical society failed even to review the case because he was a defense expert and the societies only attempt to discipline plaintiff witnesses.(