When YOUR Treating Physician is Selected as an Expert Witness Against You

4 thoughts on “When YOUR Treating Physician is Selected as an Expert Witness Against You”

1. I fully agree with you. The expert would subject his testimony to the argument that he held malice against the defendant doctor who chose to have surgery by another physician. As one who has testified many times, primarily in issues related to workers’ compensation benefits, it has always been the practice of those for whom I have testified to be certain I have had no relationships of consequence that might possibly color the objectivity of my opinions.

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2. It is unclear from the commentary about when a relationship with a prior treating physician ends. One would think that in a normal medical context if the problem for which the patient sought treatment has resolved, or the patient sought treatment from another physician, then, the relationship ended with the consultation.
   In a legal context, the relationship never ends because it was never formally terminated.
   Again this is one of those legal issues, which trips up most physicians that have not been specifically educated about the specifics of physician-patient relationship and its end.

   Would the opposing attorney then ask the expert witness the following questions:
   a)Do you remember treating the physician/defendant as a patient? (Since it was many years ago, the likely answer would be no).
   b)Do you think that your can render an unbiased opinion about the physician defendant even though you consulted with that physician defendant years ago as a patient? (The expert witness would say yes).
   c)Do you consider yourself to have an ongoing treatment relationship with the physician defendant even though you only saw him/her once for a consultation years ago? (The expert witness would say no).

   Those three questions dispose of the issue of whether the expert witness is biased against more or less.
   The defendant physician’s attorney would then rightly ask if the relationship was ever formally terminated (but in the mind of the expert and the defendant physician, the answer would be no it was not, but it was only for a one time consult, and was not maintained, therefore the relationship lapsed of its own accord by the parties involved).
   The defendant physician’s attorney could then ask if the expert witness harbored ill will against the defendant physician, because he sought to have surgery elsewhere. The expert witness would say no, and perhaps say that he did not even remember the consult from so many years ago.
   Again these are a lot of tortured twists and considerations because of legal interpretation.
   Would the board of medicine step in? Maybe. Should they? No. We have far too much intervention on the part of boards of medicine. They would turn the expert into a victim by probably admonishing him about terminating a relationship with the defendant physician, even though it was clear that both physicians considered the relationship over and done with, with the single consultation.

   Bottom line, every physician is going to have to beef up their knowledge of all of the legal pitfalls that they encounter in various different realms every single day.

   Also as I recall in such cases the name of the expert witness and their testimony is usually released to the defense in fairly prompt manner or should be, so that if there is a challenge to the expert witness, as in this case, another witness can be obtained. Or, the matter can be brought before a judge to settle this issue along the lines of what I have mentioned above.

   How to get legally entangled without even trying, would make the name of a great book for every medical student, resident, and practicing physician, to read.

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3. Classic case of the devil residing within the details. If Doctor A’s consult was about, say, an experimental treatment for acne and Dr. Expert will be testifying about A’s treatment of someone for a subarachnoid hemorrhage, there’s no obvious conflict. More on this below.

   But if Dr. A consulted the expert about having hand surgery and is testifying against him because A botched surgery because of, say, a hand deformity that adversely affected his performing that surgery, it’s a different matter.

   In the former case, there’s no conflict because the initial contact has no bearing on the instant case. In the latter, while first contact would be germane to instant case, preservation of confidentiality becomes a real issue.

   But—and it’s a big but—the question still remains whether Dr. Expert is being asked about the case Dr. A botched or about the content of what transpired between A and Expert years ago. If the question is, “based on what you know about Dr. A, do you consider that he committed a malpractice?”, that’s clearly asking for a breach of doctor-patient confidentiality. If, on the other hand, the question is, “given what you see on this plaintiff’s CT scan, would you have done the operation that Dr. A did?”, I fail to see a conflict since no private information is asked for or relevant.

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4. If counsel questions you “as an expert witness” if defendant “committed malpractice” the expert should always respond: “I am not serving as an expert medical witness to answer if any participant in the care of this patient can be designated under any pejorative legal definition.”

   “Because I am not an attorney, I do not respond to legal questions. If counsel would like to ask me a medical question I will respond.”

   “I have not had legal training and I am not a member of the Bar.”

   Every sufficiently skilled attorney who is involved representing patients will ask: “In your opinion doctor did the defendant fulfill the standard of care for this patient?”

   That is the correct question,

   Michael M. Rosenblatt, DPM

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