High on many physicians’ lists of such personal tortures is being asked to give sworn testimony in a court of law.
THE FEAR FACTOR
The torment of testifying goes beyond the long-standing loathing that physicians feel for lawyers. It is often a real fear that causes great anxiety. Some attorneys may try to downplay the stress by reminding a physician that “No one is going to die,” or “Your insurance company has you covered.” But rationality doesn’t necessarily conquer fear, and well-meaning statements like these do not help many physicians overcome their anxiety. Douglas R. Fahringer, Director of Claims for the Professional Casualty Association, has seen the fear of testifying affect many physicians over the years. “Once you have a court reporter swear you in and you have an attorney sitting across from you with a chart and your CV, doctors get very, very nervous,” he says. Prior to his current position, Fahringer defended medical malpractice cases for more than a decade. “The litigation process can be very painful for physicians,” he notes (personal communication, 2016). Spine surgeon Michael R. Marks knows this kind of pain firsthand. “In the winter of 1988 to 1989, I had just joined a practice, and all of the chronic back pain or back injury patients became mine,” he explains. Some of Marks’ new patients had Workers’ Compensation claims pending, and fairly quickly into his tenure Marks received a subpoena to appear in court. “I was six months out of my fellowship,” he says. “Nobody had prepped me or trained me for what was supposed to happen when you get to court” (personal communication, 2016).
In the courtroom, Marks was nervous, but at first, things went well. “I was asked all these medical questions, and it was my area of expertise, so I felt comfortable,” he says. But then the questioning and the tone of counsel took an ugly turn: Marks was asked about his fee for testifying. “I said I did not know,” relays Marks. This set plaintiff’s counsel wild. The jury was dismissed, and the intensity of questioning ratcheted up. “Your Honor, I am an employee,” Marks tried to explain. “I know nothing about the finances. I get a check every two weeks.” But the barrage continued. Finally, Marks said to the prosecuting attorney, “I gather you think my fee is too high. I have no basis for this, but the only thing I can say is that you went to law school and I went to medical school. You are supposed to be in a courtroom, and I should be in the operating room. So, if you are telling me that it is really high, maybe it is punitive.” Thus, ended Marks’ litigation baptism by fire.
Some physicians experience real-world health consequences in response to being summoned to testify. “We have had doctors who have been hospitalized because of chest pains or anxiety,” reports Fahringer. “We have had doctors give us notes from their treating physicians saying they’re just not capable of withstanding the rigors of trial.” Marks even knows one physician who had to take betablockers prior to delivering her testimony. The physical manifestations of stress from testifying are real and can be concerning.
HOW TO BE AN EFFECTIVE WITNESS
Being successful on the stand takes a little know-how and a bit of practice. Those physicians who are asked to testify should keep a few things in mind. First, restrict your testimony to the areas in which you are qualified. Whereas legal qualification for an expert witness varies by state, most physicians understand the boundaries of their expertise. Next, remember that “an ethical expert is an educator, not an advocate,” according to Louise Andrew, founder of The Coalition and Center for Ethical Medical Testimony. “The single most common mistake made by medical expert witnesses is to think of themselves as advocates rather than educators, and to allow judgment to be clouded by the need to ‘win’ the case” (personal communication, 2016). This is often easier said than done. Both compensation and competition can tempt a doctor out of the role of educator and into the role of advocate.
TESTIFYING AGAINST ONE OF YOUR OWN
When we think of physicians providing expert testimony, we almost always think of a medical malpractice case. Perhaps more disturbing, though, are matters that involve a doctor’s partner or colleague as a party to the litigation. Such situations can happen in business or commercial litigation. Probably the most stressful request to provide testimony comes when a fellow physician’s competency to practice medicine has been called into question. The number of these cases has increased over the last several years, driven in part by the advent of Physician Health Programs (PHPs). According to Louise Andrew, founder of The Coalition and Center for Ethical Medical Testimony, PHPs are an outgrowth of traditional hospital impairment committees and state medical societies. Generally speaking, they are intended to assist physicians recovering from alcohol and addiction issues. “If the colleague who appears to possibly be impaired denies that there is a problem, yet the partner is pretty sure that this has interfered with the safety of the patients involved, the patients and that partner have an obligation in many states to report to the medical board or to the PHP that there might be an impairment problem,” explains Andrew. Andrew hits upon one of the most stressful areas of physician testimony: “How are you going to go to work and face this colleague, who may feel that he has been reported unjustly, and whose life is going to immediately change when the PHP tells him he must go to a three-month program out of state for treatment?” (personal communication, 2016). Offering evidence against a partner or close colleague can be emotionally brutal for all involved.
Five Rules for Physicians Testifying
- Acknowledge the stress. Testifying can be a stressful job. Some attorneys are unpleasant and aggressive, which will make testifying even more challenging. Understand that you are not alone and work to cope with the stress;
- Stick to what you know. As a witness, you cannot control the questions you will be asked. But you can control your responses. Do not guess or speculate. If you are unsure of an answer, say so. Testifying is not a multiple-choice test.
- Educate, do not advocate. The purpose of testifying is to convey knowledge you have to those who do not have it. The attorneys are the advocates. Witnesses present evidence. Physicians are educators. The approach of educator will give your testimony greater credibility and professionalism.
- Answer the questions directly and briefly. We have all seen the way politicians talk around questions and “pivot” to other issues. This is one reason we collectively dislike and distrust politicians. When asked a question in court, give a short, straightforward answer.
- Remember your audience. My father was an attorney who defended dozens of medical malpractice cases. He always told the expert witnesses to pretend he was a smart sixth-grade student. This helped focus the expert on both the prior knowledge level and the attention span of the jury, which typically consists of well-intentioned people who want to make the correct decision but lack medical knowledge. A good rule of thumb is that the shorter and simpler your medical answer is, the better.
EXPERT WITNESS LIABILITY IS UNLIKELY
Although physicians have faced sanctions and even criminal charges arising from their time on the witness stand, examples of this are rare. In one instance, in October 2015, a Denver, Colorado, obstetrician testified as a plaintiff’s expert in a medical malpractice action in Ohio. This expert called an opposing expert’s article a hoax and went on to testify that the article had resulted in that author/expert being fired. However, the plaintiff’s expert had no basis for his assertion that the article in question had caused the author/expert to be fired. It seems the statement was more fiction than fact. An Ohio prosecutor quickly brought perjury charges against the obstetrician for his testimony. “We have found that expert witnesses behave rationally when they are accountable for their testimony,” says Jeff Segal, Founder and President of Medical Justice Services, Inc. Medical Justice seeks to protect its members from frivolous lawsuits by holding expert witnesses accountable for their testimony. “In many states the offering of testimony may be reviewed by the state licensing board. Further, many professional societies have standards for their member when testifying” Segal explains (personal communication, 2016).
According to Segal, physicians who are considering testimony can take comfort in the fact that “most physicians testify truthfully and accurately. We only see liability attaching in situations where the expert witness testifies falsely or outside the scope of his/her knowledge.” In my experience, Segal is correct. The average physician taking the stand need not be concerned about incurring liability from testifying.
In the practice of medicine, you may be required to serve as a witness for a legal proceeding. This can be a very stressful obligation, especially if the proceeding involves a partner or colleague. By following the five rules for physicians testifying, your time on the witness stand will be more effective.
Michael J. Sacopulos, JD
Founder and President, Medical Risk Institute
676 Ohio Street, Terre Haute, IN 47807
Article appeared in The Journal of Medical Practice Management, November/December, 2016