Chapter Originally Published in Inside the Minds: The Role of Expert Witnesses in Medical Malpractice Cases, Aspatore Books (October, 2009)By: Thomas J. Berger, MD
Following my training with Dr. John Kirklin, the first man to do a series of cardiac operations with a heart-lung machine, I served as a staff cardiac surgeon at the Naval Regional Medical Center, in San Diego and then started my own open heart surgery program in a small town in Montana. In 1990, my program was recognized in the Wall Street Journal as being tied for the lowest mortality in the nation for Medicare coronary bypass procedures. I later returned to academic medicine as the Chief of Surgery at a Duke affiliated hospital in North Carolina, where I was responsible for teaching Duke residents and fellows when they rotated through my program. In that capacity, I held the academic appointment of Associate Consulting Professor of Surgery at Duke.
Prior to my vision problems, while still operating, I had acted as an expert witness in a number of cases and enjoyed the experience. I decided that the best way to continue to put my training, knowledge and experience to work on behalf of patients was to pursue the specialty of forensic medicine on a full time basis. Forensic medicine is the application of medical facts and principals to legal matters. Since then, I have participated in over 300 med-mal cases. Early on, I developed a reputation as a plaintiff's expert, meaning an expert on behalf of patients harmed by substandard care. Once I became known as a plaintiff's expert, those became virtually the only cases to come my way. Consequently, although I would love to do more defense work, over 90% of my expert consultations have been for plaintiffs.
Such type casting is typical and not really surprising. Plaintiff's attorneys and defense attorneys are so different from each other that they assume experts must also come in two flavors. The attorneys forget that, while they are advocates for their clients, regardless of truth or justice, ethical experts are advocates only for the truth. In my opinion, the qualities which make a good defense expert are the same as those which make a good plaintiff's expert. Other than appropriate education, training and experience, these include a tireless dedication to uncovering and exposing the truth, the ability to think quickly and logically and an unshakable equanimity under questioning. In his famous poem, "IF," Rudyard Kipling notes how hard it is to, "Bear to hear the truth you've spoken twisted by knaves to make a trap for fools." Yet this is precisely what every expert must often bear to hear, without losing focus and without becoming angry. Twisting the ethical expert's truth to thwart justice is the opposing attorney's job. If the expert takes it personally and shows emotion, it is only the truth that will suffer.
Consequently, when an attorney contacts me, he or she wants and needs honest and accurate answers to two questions. These are:
When I am contacted by non-attorney family members, it is often hard to explain the enormous significance of this second question. As the attorney knows, it is legally irrelevant how gross the malpractice may have been, unless it can be shown to a reasonable degree of medical certainty (RDMC) that those medical errors actually harmed the patient.
This is not always the case with family members. Families of patients who have received substandard care are often understandably angry and, consequently, want to punish the care provider they see as negligent as much or more than they want any monetary award. It may be difficult for them to understand that, even if they sat at the bedside and watched Grampa bleed for two hours before the nurse came, they would have no case unless the bleeding actually caused Grampa harm. For example, if he bled enough to need a blood transfusion to which he had a catastrophic reaction and died, that would be a "good case." If the same level of neglect and the same amount of bleeding led to a successful blood transfusion, after which Grampa did well, that would not be a "good case."
After hearing the basic facts of a case over the phone or learning of them in an e-mail, I provide a free verbal evaluation. This indicates whether the case is likely enough to have merit that it would be worth the expense of my review. I get $650/hour for review and the first two hours must be paid for in advance as a retainer. If I think the case is likely to have merit, I advise that it would be worth an investment of $1,300 to find out. If there is little chance of the case being a good one, I explain why and advise against this investment.
I am occasionally asked to review a case in spite of my frank advice that it seems unlikely to be worth pursuing. Rarely, such cases surprise me and, upon more detailed evaluation, I do find deviations from the SOC which did hurt the patient. Often, in these circumstances, the malpractice I find in the review has little or nothing to do with the issue about which the family was concerned. They felt correctly that something was wrong; they just could not pinpoint what it was.
Even if my review reveals or confirms that a case has no legal merit, it may be worth the retainer to find out. $1,300 is a small price to pay for a family's peace of mind. I am often able to assure a family that their loved one's care was good and the adverse outcome could not have been prevented. In other cases, I must explain that SOC probably was violated and the bad result probably was avoidable, but that this could not be proven to a RDMC. Even in these cases, where harm has been done but no litigation is advisable, the psychological closure alone can be worth the investment. There may be nothing the family can do about it but, at least, they understand what happened.
Inpatient records should be grouped, and bound or rubber-banded separately, by hospital and by admission. The name of the hospital and the dates of treatment (i.e. admission date through discharge date) should be prominently displayed on a cover page for each one. Outpatient records should be similarly grouped and labeled with the name of the doctor or clinic and the time span from the first visit to the last on the cover page of each. You would be amazed at how often I receive piles of medical records from different admissions to various hospitals and clinics all mixed together in no discernable order. The review cannot begin until I have spent hours, at $650/hr getting such records organized.
All documents within each goup of records must be in chronological order and labeled appropriately for rapid reference. They should NOT be in reverse chronological order just because they happened to come out of the copy machine that way. Your expert will only get a feel for what happened by experiencing the patient's hospital course as it unfolded, not by starting with his death and working back towards his admission. Various sections of the chart as well as key documents within each section should be properly grouped and prominently labeled with tabs for easy identification. These include: Admit note; H&P; Discharge Summary; Progress notes; Operative notes; Lab results; X-rays; Consults; Nursing notes; ER records; ICU flow sheets; order sheets, autopsy report, etc. Bates stamping, which is a legal numbering system to help identify documents and pages, is also very helpful. I would say that fewer than 20% of the records I receive are organized in this manner. The wise attorney will check the records personally before allowing his secretary to send them out. If they are not well organized, it will be the attorney, not his secretary, who pays me $650/hr to prepare them for review.
All previous depositions and some legal documents, such as interrogatories, should also be provided. An attorney should never hold back records because he or she thinks they will discourage the expert or out of fear that the costs will increase as a result of the time the expert will spend on them. An experienced expert will not waste time on a detailed review of peripheral material. However, what the attorney thinks is peripheral may, on review by the expert, prove to be a crucial point on which a case will turn. Therefore, I strongly emphasize the importance of the attorney sending everything. Let the expert decide what is relevant. If a document seems damaging to the case, the earlier the expert can review it, the better. The worst scenario would be for the expert to see it for the first time on the witness stand.
The initial detailed record review can be the most interesting part of a consultation. At this point, the expert is very much like a detective, trying to reconstruct what really happened. I literally go over records with a magnifying glass to decipher scrawled notes and read between the lines. I was recently deposed in a matter where two nearly illegible progress notes, missed by the defense experts, completely demolished their case. This so upset the defense attorney that he was unable to continue the deposition.
In many cases, my review reveals the cause of a bad result for the very first time. This is less surprising than it may seem. Medical care today is often fragmented among so many different specialties that there is no "captain of the ship." In such cases, an adverse outcome may be a mystery which no one feels the need to understand or explain. Solving such medical mysteries is up to me as the expert witness.
Unfortunately there are also cases in which treating and consulting doctors know exactly what happened but conspire to keep that knowledge from the patient's family. This "conspiracy of silence" was once accepted standard practice among physicians. In the current hysterical anti-litigation climate, it seems to once again be rearing its ugly head. In fact, in my opinion, the conspiracy of silence today has the active approval and support of some powerful medical organizations. Experts who dare to break the code of medical omerta may be subject to punitive action by such organizations, even when no doubt about the honesty of their testimony exists.
The motto of my forensic consultation service, Heart of the Matter Expertise, is, Vera Quaerenda, Invenienda, Testificanda. That is Latin for, Searching for the Truth, Finding the Truth, Testifying to the Truth. The searching and finding begin with the initial review.
The expert's opinion is not formulated by what he or she has read to prepare for the case. Scientific literature and texts are used to help explain, support or illustrate that opinion and to show that it conforms to the requirements of Daubert. One way to satisfy Daubert is by use of published "Guidelines" in the scientific literature. As an example, consider the case of a patient who presented to an ER with chest pain and was essentially ignored until he had a heart attack and died in the waiting room. The American Heart Association/American College of Cardiology has published Guidelines on this subject. These Guidelines state that a patient who presents to an ER with chest pain should have an evaluation, including an EKG, within ten minutes and "certainly" within 20 minutes. Failure to obtain an EKG or take other appropriate action in this chest pain patient was clearly a deviation from the SOC. When the patient, a young man, died of a heart attack in the waiting room, that deviation was undoubtedly a proximate cause of his death. Following my report, showing failure to meet the Guidelines and the consequences of that failure, the case settled promptly and favorably.
It is important to understand that if that same patient had died of a stroke rather than of a heart attack, it would not have been a viable case. The deviation from the standard of care would be the same and equally egregious, regardless of the cause of death. However, an EKG would not have predicted the stroke and would not have changed the outcome if stroke was the cause of death.
Guideline evidence, cogent as it is, may not be all that is required. In the case referred to above, I also cited data showing that prompt diagnosis and appropriate treatment in the ER is effective in preventing death from heart attacks. The Guidelines proved only the deviation from the SOC. The additional data demonstrated that failure to meet that SOC deprived the patient of treatment that would, to a RDMC, have prevented his death.
I have heard a politically powerful and internationally known surgeon describe defense experts as "Loyal Shield-Bearers" and plaintiff's experts as "The Enemy." A "Shield-Bearer" can always be found to loyally defend even the most outrageous instances of malpractice. To counter the testimony of such a biased expert, I must make it crystal clear to a jury that my opinions are supported by the literature and textbooks and the loyal shield-bearer's opinions are not. I do not want jurors to choose between the other expert's opinion and mine. I want them to choose between his or her opinion and the opinion that I have shown to be supported by the literature and/or generally held within the relevant scientific community.
I have seen many so-called "expert reports" that were nothing more than case reviews followed by unsupported opinions, unjustified conclusions and no references. These were probably cheap but were still not worth even the small amount that was paid for them. If an attorney receives a report like this, he or she should demand that it be appropriately expanded to comply with the requirements of Daubert. If the expert cannot or will not deliver a real report, it's time to find a new expert.
My reports are detailed (usually 10 to 20 pages with a full bibliography). They take a long time and extensive research to prepare, which can make them expensive. The expense is well justified, and I have never had an attorney fail to agree that a report I provided was well worth its cost. When the defense sees from the report how strong the patient's case is, a settlement is likely to be offered that will make the cost of the report negligible. Unfortunately, many med-mal insurance policies give defendant doctors the right to refuse a settlement. An arrogant physician can force his or her insurance company to go to court, even in cases where the most flagrant negligence has been fully exposed. When this happens, the report is still worth the expense. A comprehensive report gives the patient's attorney, usually for the first time, a complete understanding of the often complex anatomic, physiologic and therapeutic issues involved. This allows him or her to most effectively plan and present the case.
The first of these is a detailed Timeline. My Timelines usually begin with the date of the patient's birth. Some points on the Timeline, such as previous illnesses, may be separated by years or decades. Others, such as key intra-operative events, may be separated by minutes. My Timelines also indicate, whenever possible, the precise point at which the SOC was violated, since this is a favorite defense question. Defense attorneys strive to confuse experts over insignificant time related details. Having my Timeline in front of me during depo and trial testimony prevents this tactic from succeeding.
The other document I often bring to depositions and trials is one I call "Issues and Evidence." Issues include every deviation from the standard of care, every argument the defense attorney is likely to make, and any other key points on which the case may turn. Each of these Issues is followed by references to every place where the medical record and/or the literature support my position on that point. When the defense attorney challenges me on any of these critical issues, I do not have to depend on memory. I just look at my Issues and Evidence document and am able to quickly support my position with all the data that my exhaustive review has revealed.
By the time I arrive at a depo or trial, my Timeline and my Issues and Evidence documents will usually have been committed to memory. Nevertheless, I like to have them both there in front of me so that there is no chance of missing or having trouble finding any key bit of support for my position. This means that the defense attorney has a right to see and copy those documents and to make them exhibits. I have no problem with this. If it was not a strong case, I would never have taken it in the first place. Since it is a strong case, I want the defense attorney to see just how compelling it is. If there was no settlement offer after the report, or if there was no report, the deposition is another chance to convince the defense attorney that a settlement is not just the best course of action: it is the right thing to do.
In one case, against a powerful cardiac surgeon at an extremely prestigious medical center, I was aggressively deposed for two full days. The defendant and his attorney were outraged that anyone would dare to testify against such a well-known hospital. The plaintiff's attorney told me I could object to such an extended and hostile assault. I preferred to let the high powered defense attorney give me his best shot. I had all the answers and no matter how many times or how many different ways he kept asking the same questions, those answers were not going to change. Nor did I allow his rude manner to goad me into carelessness. This tactic is unpleasant but not uncommon. Fortunately, it is also transparent and easy to foil. As my interrogator became louder and more offensive, I grew calmer and more polite. In a way it was amusing. Not long after my deposition, the case settled for, as I recall, about $2 million. This case was one of many that illustrate the necessity for exhaustive preparation as well as the vital importance of maintaining one's equanimity.
Settlement after a deposition is usually not made until just before the trial or "on the courthouse steps." I prefer to have cases resolve with a settlement. The best attorney I know once told me that, "Every time you go to try a case, you might just as well be in Vegas rolling dice." My testimony is not the only factor to determine a jury verdict. Sometimes the attorney does not present the case well, or the defense expert misrepresents the truth convincingly. Other times key information is kept from the jury due to legal technicalities, and in other instances jurors have been influenced by propaganda vilifying malpractice litigation. It is important to remember that anything can happen at trial.
When I come into town for a trial, the attorney often offers to meet with me over dinner. While it is nice to be treated to a free meal, that is not the reason I am there. I prefer to have our conference in the attorney's office or in my hotel room. This permits a detailed discussion, with all documents available for review as indicated. When we are done, I eat a room service cheeseburger and go to bed early.
During a trial, attorneys are often harried and sleep-deprived. This may cause them to skimp on the time they spend with their expert the night before he or she takes the stand. This can be a crucial mistake. If the judge is strict and the attorney does not ask the right questions, key facts upon which a jury verdict can turn may never surface. If the judge gives me latitude, I will try to squeeze those facts in, but this can turn a jury off. The jury wants to see the attorney make his or her case. They do not want to see an expert make the case for the attorney. To me, this does not make sense, since the facts should be all that matter, regardless of how they come out. However, jurors are human and humans are sensitive to more than just facts. The manner in which the facts are presented is important and the best way for them to be presented is for the attorney to bring them out by masterful and well-planned questioning of the expert.
An experienced and realistic attorney working a complex case may realize that he or she will not have time to plan fully for all lines of questioning or to provide for all needed audio-visual aids in the middle of a trial. One way to avoid this problem is to meet with the expert for a trial-strategy session days or even weeks ahead of time. In recent years, more and more of the attorneys with whom I work seem to have figured this out, and I have found it to be an effective approach.
All expert fees must be paid before depo or trial testimony is given. Rarely, an attorney who has difficulty paying will offer higher compensation but make it contingent on a settlement or on the favorable outcome of a case. Such arrangements are unethical for obvious reasons. Attorneys should know this and should never insult an expert by making such an offer.
Kangaroo courts, convened by such organizations, attack experts who dare to testify on behalf of patients harmed by their members. Until recently, only the Mafia threatened potential witnesses against it. Now certain elements in the medical profession appear to be following this shameful example.
One of the most basic rights of citizens in a free society is the right to legal redress of grievances. If a patient is harmed by a negligent doctor, legal redress requires the help of an expert. The current attack on independent expert testimony in med-mal cases is not just an attack against the experts themselves. It is an attack on the integrity of our legal system and the right to redress of every American citizen. I am proud to be among those experts who still refuse to be intimidated and will continue to testify honestly in all cases, regardless of consequences.
Dr. Thomas Berger, MD, is a board certified cardiac surgeon by the American Board of Thoracic Surgery. He has been involved, as an expert, in over 200 medical malpractice cases. Most of this experience has been since 1998, when his firm, Heart of the Matter Expertise, began to gain recognition, within the legal community, as the premier expert witness service for cases involving cardiac surgery and cardio-thoracic disease.
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