We will discuss several ways to find good or bad expert witnesses, who can win or lose your case. Each way has its advantages and disadvantages.
The Local Doctor – Part II
In a Maine case, a woman was suing a hospital for prescribing the wrong diabetes medication, which resulted in the loss of her leg. Her lawyer hired a prominent doctor in a nearby city, to act as her medical expert witness. However, at trial on the witness stand, the doctor gave an opinion that was completely different from the opinion he had given her lawyer. It was so damaging to her case that the opposing lawyer asked the doctor when he had formulated his opinion, to which he replied, “Oh, about an hour ago.” The judge called both lawyers aside and asked, “Which side is this man testifying for?” The jury ruled against the plaintiff, and she received nothing. The doctor later told her lawyer he had heard “by the grapevine” he would be in serious, political trouble at his hospital, if he testified for her and she won her case against the other doctor.
The so-called Conspiracy of Silence is really a Conspiracy of Intimidation. The medical profession has effective methods of dealing with turncoats and mavericks, and the doctor who offers to testify against another doctor, in the same community, can easily be made to understand he is risking his political future in the medical profession. It is not uncommon for a doctor’s colleagues, or his insurance company, to exert pressure to force him to bow out at the last minute, when replacing a medical expert witness may be difficult and expensive, if not impossible. This puts your case into the legal equivalent of cardiac arrest.
An upstate New York woman was suing her surgeon for having cut the nerves to her vocal cords while doing a thyroid surgery. Her family doctor agreed to testify for her, and her lawyer recruited a local surgeon from the same city. Her case looked solid, but a week before trial, the family doctor called to say he would have to withdraw from the case. He discovered that he and the defendant doctor had the same malpractice insurance company. The family doctor had been notified that his malpractice insurance would be canceled if he testified.
Nevertheless, the woman and her lawyer were confident of the outcome, since they still had the surgeon on board, who was their main medical expert. But, two days before trial, her lawyer received a call from the surgeon, saying that he and his wife had taken an “emergency” vacation to Florida and could not make it back for trial. Since the court could not order the surgeon to return from Florida, and it was too late to find a substitute medical expert witness, that was the end of her case. Her lawyer settled the case for nuisance value – less than what the trial would have cost the doctor’s insurance company in legal fees and about 5% of what the case was worth.
The Rule Is: Reputable physicians will rarely testify against their local colleagues, and one who will is probably a maverick, who does not have the professional standing or reputation in the medical community to impress a jury.
Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by JD.MD’s medical expert witnesses.