Do you need to obtain coverage to defend against their ‘experts’?

Did a physician testify against you falsely in court or during a deposition?

“Physicians who have been sued, particularly those who have successfully defended their case, often have a need to resolve the feelings of betrayal by a fellow physician who has testified unethically,” says Louise B. Andrew, MD, JD, FACEP, litigation stress counselor and principal at MDMentor.com.

Evidence of the willingness to pursue unethical experts in court — for example, having countersued an expert who testified in a prior case — could deter litigation before it occurs, says Andrew. She warns, however, that any action by a defendant physician against an unethical expert should never be initiated during the pendency of a case. “After the case is resolved, there are several possible mechanisms for pursuing an unethical expert,” she says. These include reporting the testimony to the ethics committee of a medical association of which the expert is a member, reporting the testimony to the expert’s licensing board as an example of unethical behavior, or simply publishing outrageous testimony verbatim on a website.

“A plaintiff’s attorney is somewhat less likely to pursue litigation using an expert who is willing to say anything for a price — a so-called ‘testiliar’ — if he or she realizes that both the witness and the attorney might end up defending themselves against the defendant physician or that the expert may have to justify his or her testimony before a committee of peers on an ethics committee or medical board,” says Andrew.

Prevent meritless lawsuits

Professional liability companies focus on defending against a claim and paying settlements or judgments within policy limits, according to Jeffrey Segal, MD, JD, founder and CEO of Medical Justice Services, a Greensboro, NC-provider specializing in protecting physicians’ reputations and practices. They rarely, if ever, take any post-trial action against any proponent of a meritless lawsuit, he says.

Medical Justice Services focuses on preventing meritless lawsuits before professional liability coverage is triggered and providing post-case remedies against proponents of meritless lawsuits, says Segal. In one case, an orthopedic spine surgeon was sued for allegedly causing impotence and persistent pain related to his surgical technique.

“The expert witness, a pediatric orthopedic surgeon, gave this case legs,” says Segal. “This expert didn’t bring to the court’s attention two important details.”

The patient had been on erectile dysfunction medication long before the surgery, and an emergency department medical record stated that the patient reported doing well until an auto accident occurring that day.

“So the surgery had little to do with the patient’s long-term pain,” says Segal, adding that the expert ultimately was sanctioned by his professional organization.

Medical Justice Services does not defend lawsuits or pay settlements or judgments, says Segal, and its role is primarily before a lawsuit if filed and after a case is terminated. “To the extent there is any involvement while a case is pending, Medical Justice takes no action, unless and until cleared in writing by carrier-supplied defense counsel,” he adds.

Plaintiffs are sometimes deterred from filing questionable cases against clients of Medical Justice Services when they realize their actions might be scrutinized, reports Segal. In one case, a lawsuit alleged a patient’s heart stopped because an emergency physician missed high serum potassium levels and failed to treat hyperkalemia. “The doctor’s defense was that the patient was dead a long time before she ever arrived at the emergency room. His position was that the potassium level was high due to death and decomposition,” says Segal. In fact, the patient had been found at home after being down for at least 30 minutes, and she had remained in asystole after being found by family members, he explains.

“The physician wasn’t dropped from the suit until the defense attorney contacted the plaintiff attorney to explain that the doctor subscribed to Medical Justice and had $100,000 available for a countersuit in the event the plaintiff loses the case,” says Segal.

Sources

For more information on unethical expert witnesses, contact:

  • Louise B. Andrew, MD, JD, FACEP. Phone: (425) 609-0039. Email: mail@mdmentor.com.
  • Jeffrey Segal, MD, JD, Founder and CEO, Medical Justice Services, Greensboro, NC. Phone: (336) 691-1286. Email: jsegal@medicaljustice.com.