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The right stuff
As chair of the American Academy of Neurology’s ethics, law, and humanities committee, Michael Williams, MD, is part of the
team that reviews many of the expert witness complaints against fellow
neurologists. “Sometimes you can tell the expert has done a superb job and the complaint was
filed because someone is angry that they lost,” he says. “And there are other times you review the testimony and have to conclude that the
physician did a very bad job of doing what an expert witness is supposed to do.”
Williams insists a poor job doesn’t have a thing to do with which side a physician is on in a malpractice suit,
but in how the expert provides his testimony, justifies his statements and so
forth. Still, enough physicians are queasy enough about testifying against a colleague
that they will shun working for a prosecutor at all, but they won’t find work with AMFS. Schlaich insists an open mind is a requirement. To help
ease consciences, however, the firm presents the facts of a case without
mentioning which side has come calling for an opinion.
Williams also urges physicians to play for both sides, insisting that in the
end, this is the definition of civil justice. “We don’t want to prosecute somebody improperly or exonerate someone unjustly,” he says, and expert witness testimony is actually protected from libel and
slander lawsuits, so you can’t be sued for your words. The medical associations, on the other hand, do wield
standards over your head, but the University of Virginia’s Larriviere says as long as you do your homework properly and honestly, you’re safe from being hauled in front of your medical society and censured,
suspended, or expelled. It is possible for two doctors to disagree on the stand
and both be right with the profession.
According to Williams, the true conflict lies outside the courtroom. Williams
admits. “They’re afraid if they work for a prosecuting attorney, colleagues will stop
referring patients to them,” he says. However, that never happened in his medical career, and he’s lost track of the number of times he’s worked for the prosecuting side. Nor has prosecution testimony ultimately hurt anesthesiologist and forensic
scientist Zvi Herschman, MD, who works with Premiere Forensic Consultants in
Long Island, New York, although one attorney tried to hold that against him on
the stand during a time when Herschman himself was the defendant.
“He kept saying, ‘You testify against doctors at times.’ He couldn’t say ‘hired gun’ because his own expert was up next, so he kept repeating that to really
emphasize it for the jury,” Herschman says. “Finally, I said, ‘Counselor, in this business, some days you’re the pigeon, and some days you’re the statue.’”
So, as long as you don’t testify outside your range of expertise or make extraordinary claims with no
basis in science, you should sleep like a baby at night, insiders say. Williams
sums it up this way: “Never say anything on the witness stand that would get you laughed at if you
made that same statement at a scientific meeting.”
Taking a stand
Fortunately for physicians, a real courtroom bears little resemblance to the
television dramas that entertain us. “The only thing that comes close is the dress,” says Herschman. For starters, this isn’t scripted, so the next question can come out of the blue, and the possibilities
are potentially infinite. “Television courtroom scenes are very clipped, brisk and someone has dictated the
inflections and delivery. In real life, you have to think on your feet, and
there are times when you say, ‘Let me digest that question for a second,’ while you stare at the ceiling,” he says.
On the other hand, few citizens realize the power an expert witness has in that
seat next to the judge. Unlike anyone else who takes the stand, physicians in
this position are allowed to draw conclusions and state them openly to the
jury. Other witnesses are not allowed to make statements to the guilt or
innocence of the accused – they can only report what they saw or heard. “Basically, we can say to the jury what they should decide in their
deliberations,” Williams says.
Naturally, such influence won’t go unchallenged, and that’s where a physician’s verbal skills can make or break the case. Yes, the hiring attorney will go
over your testimony and work with your delivery. Herschman used to teach the
master’s students in his forensic examination course how to hone their skills so that
they could artfully present their findings in an honest manner. “It’s a long process in a sense. Some people are born graceful, some can grudgingly
be taught, and some people are just clods,” he says.
Then opposing counsel gets its turn, and the next few minutes to hours are not
for the thin-skinned. The game is to undermine the physician’s veracity and reputation, so an important part of the expert witness’ art lies in knowing when to remain silent and let the judge and attorneys argue
it out. Medical academies and societies will occasionally offer lectures and
courses on the ins and outs of the verbal jousting, but it’s difficult to teach how to avoid what Larriviere sees as an enormous ethical
jackpot that exists at this stage.
“The hardest guideline to follow in my opinion is the prohibition against being
an advocate for the side that hired you. People – not just physicians – have a tendency to adopt the views of their side as a competition, and it’s natural to do the best you can to persuade everybody that you’re right,” Larriviere says. “Not taking a side is hard when the attorneys are questioning you under
cross-examination and you have to defend your testimony.” His advice: The more you are aware of this trap, the more trouble an attorney
has in leading you beyond where your opinion should stop.
“You have to be aware of it from the time you get the file to when you give
someone your initial opinion in that courtroom,” says Larriviere.
The rewards
So just why do physicians run the gauntlet? Williams rarely sees expert witness
listed as a strength on a colleague’s CV. Most patients are blissfully unaware of a doctor’s legal work, so it has zero impact on a perceived reputation. Herschman found
the fact that he knew how to handle a prosecuting attorney quite handy in cases
where he was the defendant. And Lavorgna likes the fact that while trials can
wreak havoc on a schedule – particularly for surgeons – he’s never on call at night. “It’s very satisfying from an intellectual point of view and different from the
practice of medicine, so that makes it interesting,” he says.
“It’s not easy work, but it’s challenging,” Piver agrees. “I went into this because I thought I might need some income after I retired. I
discovered that expert witnessing isn’t physically taxing, but it’s mentally demanding. It’s very rewarding when you are an advocate, not for one side of the other, but
for your own opinion.” END
Julie Sturgeon is a regular contributor to UO.
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It Happened to Me
When real life imitates drama in an expert witness’s day, the result is a story the physician will likely never stop telling:
As the cardiac surgeon in charge of the open heart program at Los Angeles County’s University of Southern California’s Medical Center, Ismael Nuno, MD, had the random luck of treating a patient who
was released after a heart attack and went home to kill his wife a week later. Nuno had flirted with being an expert witness but hadn’t gotten past the review stage to the courtroom with any of his cases. So he can
only plead ignorance as the reason he blew off a summons to appear in Pomona
court for the trial.
His first indication something was amiss was the police officer staring through
the observation window while he operated on a patient one morning. As he was
leaving the room, the officer approached him. “Dr. Nuno, I was sent by the superior court judge to see that you appear at 1
p.m.,” the young man announced. Nuno protested that he couldn’t possibly find time in his schedule by then, so the officer handcuffed him and
walked him out the front door of the hospital, still dressed in his bloody
scrubs from the operation.
In short order, Nuno found himself on the stand being asked if he had sent the
patient home with a prescription for narcotics or other painkillers. “It’s OK if he did,” said the plaintiff’s lawyer, “because we can enter a plea of insanity or that [the patient] wasn’t medicating properly at the time.” Suddenly, both sides erupted in a firestorm of shouts and accusations, with
both sides shouting for Nuno to keep silent. The judge was banging his gavel
and threatening contempt of court while Nuno slumped lower in that chair by the
minute, realizing the whole time that these attorneys were going down the wrong
path altogether with the medication angle. After all, the edema from the heart
lung machine can cause cognitive learning loss.
“I’d always envisioned that in my first experience in the courtroom I’d be wearing a suit and answer the questions professionally,” says Nuno. “but this was two standard deviations to the left. It really rattled me.” It took him nearly a year to gather his courage to volunteer for the courtroom
again, but today he’s on the Martindale Hubble databases for work.
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Zvi Herschman, MD, an anesthesiologist and forensic scientist with Premiere
Forensic Consultants in Long Island, New York, deftly put an end to a line of
questioning with humor. Opposing counsel repeatedly asked whether oral
medication was better. Herschman tried politely to clarify “better” but it turned into verbal volleyball. “This is a serious matter and at some point, I had to find another technique to
highlight the fact that I don’t get the question. I can’t just look quizzical like a dog all day,” he says.
So on the fourth “is it better?” round, Herschman came back with “better than rectal?” The comment tickled the jury, and even the attorney was thrown off his game by
laughing.
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Meanwhile, Julius Piver, MD, JD, a gynecologist in the Washington, D.C. area,
may never learn the outcome of a trial in Puerto Rico at which he testified in
2005. He was called to talk before a judge about births during which the baby’s shoulder gets stuck. “P.S. I do not speak Spanish,” Piver says. “So they had me seated next to an interpreter. I’m not sure everything was communicated that should have been because we still
don’t have a ruling.”
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