Healthcare Needs Qualified Expert Witnesses More Than Ever

Wed 15 May, 2024

                                                             By Neil Baum, MD

Any physician or scientist who has served as an expert witness is no doubt familiar with the three golden rules of testifying in a civil or criminal trial: 1) Do unto others as you would have them do unto you. 2) Them that's got the gold, rules. 3) The lawyer with the best medical expert gets the gold.

Rule Three becomes more salient as the need for medical and scientific expert witnesses is likely to accelerate due to an explosion of jury awards. In the decade from 2013 to 2023, malpractice verdicts of $10 million or more grew by 67%, according to reinsurance company TransRe. Enormous malpractice awards like these are clearly on the rise.

In 2023, several massive payouts made splashy headlines. For example, in November, a Florida jury ordered Johns Hopkins All Children's Hospital in St. Petersburg to pay a whopping $261 million for alleged medical negligence and false imprisonment of a young girl.

The case inspired the Netflix documentary "Take Care of Maya," which chronicled events leading to the suicide of Maya Kowalski's mother over Maya's separation from her family during months of hospitalization.

Also in 2023, a Pennsylvania jury ordered the Hospital of the University of Pennsylvania to pay $183 million for an alleged birth gone wrong, resulting in cerebral palsy and substantial neurodevelopmental delays. And in New York, a jury awarded $120 million to a stroke victim for alleged delayed diagnosis and treatment leading to extensive brain damage.

As jury awards for tens of millions each against hospitals and providers become increasingly common, the question arises: Why would physicians and scientists want to get caught up in high-stakes lawsuits against healthcare institutions and fellow providers?

Based on personal experience, there are many reasons for this. I have been an expert witness for nearly three decades. It has been an enjoyable, challenging and often fulfilling experience. An expert witness can help ensure justice is served. Doctors can clarify complex medical issues, and educate and assist juries in making informed decisions.

Protecting Doctors

For most of my career, I have served as an expert for the defense and helped colleagues who have been wrongfully sued. I was once one of those unjustly accused.

More than 20 years ago, I was caring for a patient diagnosed with very aggressive bladder cancer. Because the patient was not a candidate for surgery due to a recent heart attack, I recommended radiation therapy and possibly chemotherapy.

The patient waited several months before seeing a radiation oncologist. By then, the cancer had spread. Sadly, the patient ultimately died. His wife and daughter filed a malpractice lawsuit for the delayed treatment. The plaintiff's attorney searched nationwide for urologists to testify against me. None agreed. Several called me personally to say they had declined.

For that and other reasons, including prolonged settlement discussions, the trial did not occur for 15 years. At trial, the plaintiff's expert witness was a foreign pathologist who never cared for patients diagnosed with severe bladder cancer (small cell carcinoma). My expert witness was a prominent urologic oncologist. At the end of a 5-day trial, the jury took less than 15 minutes to vote for my acquittal.

The experience took its toll on me, but to this day I am satisfied that I did not accept the plaintiff's offer to settle. Happily, it was the only time a suit against me ever went to trial in decades of practice. A handful of others were dropped.

Lesson learned: I wanted to pay forward my expert witness's testimony by supporting other unjustly accused colleagues. Rarely is an experience more gratifying.

Protecting Patients

On the other hand, justice can be served equally on behalf of patients. Once I was hired as a plaintiff's expert for a patient who was moved from the operating table to a bed. The OR team failed to move the Foley catheter bag during the transfer. As a result, the catheter tore the man's urethra.

The patient needed additional surgery and faced life-long urologic management. This was clearly a case of OR negligence. The patient sued the hospital and won, leaving me pleased with my role.

Intellectual Challenge and Stimulation

Another benefit is the challenging and intellectually stimulating experience of expert testimony. It requires the ability to critically analyze medical evidence, research relevant literature, and effectively communicate opinions clearly and persuasively both in writing and in person before a judge and jury, or in a deposition. The exercise builds confidence and patient advocacy skills in all aspects of practice, and hones a physician's critical thinking and communication skills.

For example, in one trial, I explained urinary incontinence to a judge and jury by inflating a balloon. I then opened the balloon's stem to allow the air to escape like urine leaving the bladder without the owner's permission. That demonstration resulted in accolades from both plaintiff and defendant attorneys.

Each case is entirely different, and the expert witness experience permits the application of knowledge and skills in a different setting. It can also make a meaningful contribution to prevention of future harm.

Of course, serving as an expert witness can provide additional income too. However, I caution against letting money be the primary motivator. Consider the time commitment for preparation and clinical absence, particularly for an out-of-town trial. I could earn more working as a doctor in the office.

For me, other benefits far outweigh the compensation. Let's be candid -- patient care can become tedious. Sometimes, seeing one more patient with a urinary tract infection or incontinence can numb the mind and increase burnout. Giving expert testimony can break the routine and provide a new challenge and some excitement.

More importantly, sometimes it's simply the right thing to do.

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