The Patient Was…

The patient was a forty-nine-year-old man whom I never saw in life or in death, but whom I knew quite well from his medical records that I reviewed at the behest of the attorneys hired by his family in a medical malpractice/wrongful death lawsuit.

At the time, I was in private practice of cardiovascular medicine. Along with my caring for patients and teaching responsibilities at a leading medical university, I was also a consultant to some attorneys dealing in medical malpractice. This consisted mainly in reviewing medical records in cases where patients or their families brought legal actions against physicians and/or medical institutions.

I took this responsibility very seriously and studied the records very carefully before rendering any opinions. I reviewed records for both plaintiffs’ attorneys who were representing patients and for attorneys representing doctors and hospitals accused of wrongdoing. I was partial to neither party and sought only the truth that could be ascertained from the available medical evidence. Very rarely was I asked to testify in court, because my reports were very comprehensive and most of the time both parties to the legal action accepted my opinions and reached settlements of one kind or another outside of the courtroom.

In this instance, however, although the plaintiff’s case had great merit in my view, the attorneys for the accused physician and hospital refused to concede any responsibility for the patient’s death and insisted on going to trial. The plaintiff’s attorneys therefore asked me to testify in court as an expert witness.

The reality of a trial in most circumstances is not like the courtroom dramas you may see on television or in movies or read about in novels. Those are generally filled with tension, suspense and high emotion. In a real-life trial, there is considerable tedium, and lots of time is spent in procedural arguments. Jurors may be escorted in and out of the courtroom if the judge feels that they should not be party to the legal discussions among the lawyers.

Having never been a plaintiff or a defendant in a lawsuit, I can’t speak personally to the tension and emotion that those individuals experience. But having spoken to friends and colleagues who were principals in a legal proceeding, I’m confident in saying that they are on “high alert” emotionally throughout the trial. There is usually a lot at stake for both parties, and the individuals feel it constantly. Anger, apprehension, despair, frustration are common and often unremitting.

For an expert witness, the situation is different. You expect to be challenged on your knowledge, your experience, your judgment, but you actually have little or nothing to personally gain or lose. You may have an intellectual or emotional stake in the outcome, but there is no potential loss of freedom or  forfeiture of assets. You may experience pride and vindication if your opinion seems to carry weight in the court, or you may be embarrassed if you are challenged successfully by another expert or by the attorneys who cross-examine you. But at the end of the day, you go home generally untroubled, having done your best and having been paid well for your time.

The patient in this encounter was from a rural part of one of the poorest states in the Appalachian region. He and his family were visiting relatives in another state when he suffered a serious medical event. Taken to a local hospital first, he was stabilized and then transferred to a large, urban medical center. It was there that he received more definitive care for his condition.

And it was there that he died.

The patient didn’t die from the original problem that led to his hospitalization. He died from a well-known, well recognized complication common in patients hospitalized for other conditions. It is estimated that perhaps 100,000 deaths in the U. S. occur from this condition annually. When properly diagnosed and treated, the mortality decreases dramatically, while if untreated the death rate is high.

When the patient initially developed symptoms of the eventually-fatal complication, his physicians properly constructed a so-called Differential Diagnosis, which is essentially a list of potential diseases or conditions that could be responsible for the problem. Importantly, among those listed was, in fact, the condition that led to his death. Evidence that the physicians were aware of the potential seriousness of this diagnosis included their written notation to “Rule out” the specific condition. Ruling out a diagnosis means committing to a series of steps or tests to eliminate that diagnosis because, if present, the consequences could be dire.

Here, the record was clear. Not only did the doctors not take any steps to confirm or eliminate the ultimate cause of death, but they also allowed the patient to do things that made the possibility of a fatal outcome more likely. In my view, this was an egregious and avoidable medical error that led to the patient’s demise.

At the time, there were two primary published sources of medical information about this condition. Both were in textbooks authored by well-known and highly respected experts, and widely available to physicians. I had both texts in my personal library and reviewed them in detail before the trial. In fact, I committed to memory the key passages relating to diagnosis and treatment of the condition.

The usual first step when a so-called expert witness takes the stand in a trial is to establish the individual’s credentials. There was no challenge to my status as an expert and, in fact, the defense attorney made a point of emphasizing my academic affiliation. I understood this, because one of the two authoritative textbooks had been written by a professor at my hospital. The defense obviously hoped to use this information in some way.

When the attorney for the defendant doctor and hospital approached me in the witness box, he carried one of the two expert textbooks in which he had placed a couple of yellow post-it notes.

“Are you familiar, doctor, with Professor W?” he asked. (I will use W, X, Y, and Z for the names of the doctors and institutions involved in this encounter.)

“I am,” I replied.

“Do you consider him an expert in the subject at hand?”

“I do.”

“And are you aware that he is the Endowed University Professor at X?”

“No, I am not,” I answered.

“As an expert, you are not aware of his academic status?” he said, turning to the jury with the hint of a smirk.

“He is no longer in that position,” I replied, calmly. “He was, but he is now an executive in a large healthcare organization. You must have an older copy of his textbook.”

It is rare, despite movies and television, to see an attorney visibly uneasy in court, because they rarely ask questions to which they do not know the answer. But he was clearly embarrassed for a moment and the jury noticed it.

Quickly leaving the subject of the author’s affiliation, the attorney opened the textbook to where he had placed a post-it note.

“Do you agree, doctor, that Dr. W is an expert in the problem we are discussing?”

“Yes, I do.”

“Do you agree, then, with what he says, and I quote …” Here, the attorney read a paragraph from the textbook in his hands.

It is essential at this point for readers of this encounter to understand that the way Professor W had explained our current understanding of the medical condition was to first describe an older theory that would have supported the defendant’s position. In the textbook, at the conclusion of the paragraph the attorney read aloud, Professor W pointed out that this was a now discredited idea and he went on to conclude that current knowledge supported the position I had taken in my pretrial report. Of course, the attorney left that part out of his reading.

Remember, I had committed the section of the textbook to memory.  As the jury waited for my response to the seemingly damning material they had just heard, the attorney looked at me smugly.

“You left out a key part of the paragraph you just quoted,” I said from the witness box. “Won’t you read the rest of the paragraph to the jury, where Professor W debunks what you just read out loud, says that that idea is now discredited, and current information supports what I believe is the case.”

“Counsel?” said the judge, “Do you wish to respond?”

“I believe the witness is non-responsive to my question,” said the attorney. “So, I’ll proceed with another line of questioning.”

At this point, he picked up the second textbook and reapproached the witness box. The line of questioning went much as before.

“Ae you familiar with Professor Y?”

“I am,” I said.

“Is he not, in fact, a Department Chair and Dean at your own medical institution, where you are on the faculty?”

“No,” I said. “He is not.”

“You’re saying you don’t know that Dr. Y is a leading expert at your own hospital?”

“Oh,” I said, “he was.  But he has left and moved to another institution in another part of the country.”

Then, after a brief but poignant pause, I added, “I can give you his contact information if you would like.”

The attorney was, once again, flustered. And the jury knew it. He turned to the judge and said, “Your honor, I will have more questions for this witness but it’s getting late. May I respectfully suggest we adjourn for the day and I can pick up with the witness in the morning.”

The judge agreed, and court ended for the day. I knew it had been a good day for the plaintiff’s case and I was confident about tomorrow’s testimony. I knew that the second expert textbook supported what I believed and only a misreading or misunderstanding of the text could challenge that.

That evening, at home, I decided to do something that would hopefully rattle the defense attorney who was obviously going to try to challenge me in some way. The only way I could see that happening was if he alluded to other sources of information of which I might not be aware. So, I thought, if I showed up with what appeared to be lots of supporting material to which I could refer it might throw him off his game.

So, I took my copies of the expert textbooks and randomly inserted brightly colored post-it notes throughout both of them. I came into court the next morning carrying the books in front of me, making sure the people at the defense table saw me with them. Whether or not the judge would allow me to have the books with me on the stand was immaterial; I wanted the attorneys to think I had loads of supporting information for my position.

The defense attorneys looked concerned. They huddled. They asked for a sidebar, which is a private discussion between the judge and the attorneys for both sides of a case. The opening of the trial was delayed as all the attorneys left the courtroom.

About an hour later, the judge announced that a settlement had been reached by both parties in the trial. When I asked the plaintiff’s attorneys what had happened, they told me that the defendants had offered a financial payment to the family. The amount was far too little in my opinion, and the attorneys agreed.  But the family, from a poor rural area, had never imagined so much money, and they agreed despite their attorneys’ objections.

I don’t pretend to know whether my little gambit with the post-it notes had anything to do with the defendants’ decision to offer a settlement. But it was a good feeling to know that in the one-upmanship of a trial, two can play that game.