AMDA: Publications - Caring for the Ages

An 87-year-old woman from St. Louis, Mo., was hospitalized for hip surgery. Following discharge, she was taken to a nursing home to recover. Upon arrival at the nursing home, the patient's attending physician made a minor dosage adjustment in the patient's heart medication, in keeping with accepted standard of care guidelines. Ten days later the patient developed fever and shortness of breath. She was taken to the hospital, where she died 48 hours later. Her cause of death was listed as pneumonia with superimposed congestive heart failure.

The next thing the attending physician knew, the patient's family had decided to sue him for negligent care. Charles Crecelius, MD, a Caring board member and geriatrician who often acts as a medical expert witness in such cases, was asked to testify on the plaintiff's behalf. His role was to state his professional opinion about whether or not the treating physician had acted negligently.

According to Dr. Crecelius, the attending physician had acted in good conscience, following standard of care guidelines when adjusting the patient's dosage of heart failure medication. In Dr. Crecelius' judgment, no assumption could be made that the minor medication change had caused the patient's death; it was far more likely caused by her pneumonia.

Unfortunately, there was no conclusive way to determine exactly what had caused the elderly woman's death--pneumonia or congestive heart failure. In the end, the jury was swayed by one irrefutable fact: The patient died soon after receiving treatment by the nursing home physician, a doctor new to her care.

Despite Dr. Crecelius' argument in favor of the plaintiff, the defendant triumphed, and the treating physician lost the $1.5 million suit.

What's a Medical Expert Witness?

The role of a medical expert witness in a lawsuit is to state whether or not the treating physician or health-care facility followed the federal and professional standard of care guidelines for patient care, according to Jeffrey Levine, MD, a geriatrician who practices in New York City and is the president and founder of SeniorHealth Consulting Inc., a risk-management and medical-legal consulting firm. He provides medical testimony for both defendants and plaintiffs, and investigates elder abuse for the New York State Department of Health and United States Department of Justice. He recently published the book Medical-Legal Aspects of Long-Term Care (Lawyers & Judges Publishing Co. Inc., Tucson, Ariz., 2003).

If asked to be a medical expert witness, "know your case backward and forward," he told Caring. He also advised that you, as an expert witness, believe your position. The lawyer of the opposing party will be aware of your case's strengths and weaknesses. So you should be prepared to defend your position with both case knowledge and with the conviction that your position is correct.

In its Code of Ethics, the American Medical Association (AMA) provides ethical guidelines for the medical expert witness. The AMA states that a medical expert witness is obligated ethically to provide their medical evidence and expertise in a case when asked to do so. It also says that a witness should remain in their realm of expertise, prepare appropriately for the case, and be honest about their knowledge of the medical evidence.

The AMA Code of Ethics statement on medical testimony (Code of Ethics E-9.07) reads:

As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights.

Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.

The medical witness must not become an advocate or a partisan in the legal proceeding... It is unethical for the physician to accept compensation that is contingent upon the outcome of litigation.

Oral Testimony

As a medical expert witness, you may be asked to speak in court at a hearing. There are myriad methods you can use to communicate effectively and in a manner that will make a positive impression on the jury and deter the opposing counsel from finding weaknesses in your testimony.

Act with humility: When speaking at a trial, avoid coming across as angry, defensive, or arrogant on the stand, advised Dr. Levine. If you find your temper rising while being questioned by opposing counsel, for example, force yourself to pause and allow the feeling to dissipate because it may distract from the point you are trying to make. "The jury may only hear the anger, defensiveness and arrogance without hearing the argument," he explained.

He also advises that you avoid embellishing your responses. "A lot of doctors fall into this pattern of talking about how much they know," he said. "That sometimes turns people off."

Example: Remember that the jury may not be as knowledgeable about medicine as you are. So when discussing a medication, simply explain the information in a manner they will understand.

Be professional: During oral testimony, the number-one rule is to look professional, act professionally, and speak articulately, said Jacqueline Vance, RNC, CDONA/LTC, director of Clinical Affairs for the American Medical Directors Association, Columbia, Md. Vance has performed dozens of legal reviews during the past seven years and has testified several times.

"There is nothing more damaging to your credibility than sounding uneducated and presenting with an unprofessional appearance," she explained. "Never say things like 'yeah,' 'umm,' etc. Answer questions with short answers and only answer what is being asked. Never elaborate unless requested to do so. Your attorney will ask you for more details if necessary.

"Also, be polite with your answers," she told Caring. "Look at the judge when you can when answering. Never answer a question if you are not sure of the question. Ask the attorney to repeat or rephrase the question."

The Cross Examination

The purpose of the cross examination is to challenge the reliability, assurance, and credibility of the testimony presented in the direct examination, noted Allan E. Barsky and Jonathan W. Gould in their book Clinicians in Court: A Guide to Subpoenas, Depositions, Testifying, and Everything Else you Need to Know. There are certain techniques that the witness can use, however, to avoid being discredited by the opposing counsel.

Be careful with your wording: Asking to repeat the question is extremely important during the cross examination, suggested Vance, because the opposing counsel's attorney will ask you the same question in many different forms in an attempt to confuse you and get you to provide a conflicting answer.

"It's OK to say, 'I believe I've already answered that,'" she said. "If you don't know an answer, it's all right to admit that. There is nothing wrong with saying, 'not to my recollection' or 'I don't know.'"

Further, she advised medical expert witnesses never to bluff their response to a question. "If you don't know, you don't know," stated Vance. "Take your time answering to be sure you have your thoughts together. If you need time to look at notes, ask for it."

Beware of traps: Opposing counsel may set up their line of questioning to confuse or trick you, warned Dr. Crecelius. To avoid being misled by the opposing party, listen to your counsel. They are likely aware of opposing counsel's arguments and will know how to prepare strategies and avoid likely pitfalls. Some leading questions are those that suggest the answer or a series of questions that lead to a response.

"Watch for terms such as 'always,' and 'authoritative,'" he said. "Think of what your response may mean to a jury. Don't be evasive, but be careful of elaborate responses that answer more than the question asks."

For example, nursing home records often lack material. Nursing notes may not be complete or intake records and other documentation from the patient's charts may be missing. Often, plaintiff lawyers will try to make the worst of this by suggesting that a nursing cover-up occurred or that an intake or output did not take place. If you represent the defense, don't dwell on this point. Simply note that there is no factual basis for the plaintiff to draw a conclusion--negative or positive--from the fact that errors were found in the patient's documentation.

Make eye contact: Dr. Crecelius also suggested that you look directly at the jury when speaking. It will develop a relationship between you and them and help you track their understanding of the medical information you are presenting. Keep an eye on your counsel as well, he offered: "They can provide a lot of nonverbal cues about your responses." Prearranged signs may indicate responses that are too short, not detailed enough, too long, or too elaborate.

Playing an Adversarial Role

It's no easy task for physicians to be medical expert witnesses, said David A. Smith MD, FAAFP, CMD. Physicians are unaccustomed to playing the adversarial role that may be asked of them when acting as a medical witness. "Normally, physicians are partners with patients and families," he said. "An adversarial situation is foreign to them."

For that reason, Dr. Smith, a geriatrician from Brownwood, Texas, who has acted as a medical expert witness in approximately 60 cases in the past 10 years, advised that healthcare professionals prepare themselves psychologically for the experience of participating in a lawsuit as a medical expert witness. "The experience is one that requires practice and some soul searching before undertaking it," he said.

Many physicians are reluctant to testify because of perceived conflicts and inexperience with the legal system. However, as litigation increases it is increasingly important that well-trained, practicing LTC physicians participate as legal experts. "So-called 'expert witnesses' with inadequate experience in nursing home medicine don't help bring about justice," noted Dr. Crecelius.

Closing Arguments

The importance of the expert medical witness in resolving conflicts in the medical field is increasing. "In the past, the legal profession has taken a leading role in designing formal dispute resolution systems in our society," said authors Barsky and Gould. That system is changing, they said. Clinicians now try to develop equal partnerships with attorneys, and some are taking leading roles in developing mediation and alternatives to the traditional court system.

Ultimately, the authors state, attorneys recognize that they must collaborate with the health-care industry to resolve patient care conflicts. Giving the medical expert witness a larger role in the litigation process will give them the knowledge and control to serve justice to the best of their abilities.

How to Prepare Written Testimony

When preparing to act as an expert medical witness, you may be asked to prepare written testimony, which documents all of the medical evidence. Jacqueline Vance, RNC, CDONA/LTC, director of Clinical Affairs for the American Medical Directors Association (AMDA), Columbia, Md., recommended the following to prepare the chart in a professional, effective manner:

Analyze the medical chart. When preparing the case, analyze the patient's medical records to determine if the party being sued followed the standards of care.
Organize the chart carefully. When reviewing medical records, you must be able to access information quickly and in chronological order. Invest in the time to organize the records you are reviewing. Mark pages with easy-to-find visual cues that contain relevant notes about dates, times, incidents, etc. Next, develop timelines to show an account of key events, such as a course of care/treatment over months, sudden changes in a patient's condition, or follow up after an incident.

This type of preparation will help the jury or other parties involved in the case understand the correlation between key events and the condition of the plaintiff. It is also useful in refuting the defendant's or the plaintiff's claims--depending on who the expert represents. These methods of preparing testimony apply to witnesses who represent either the plaintiff or the defendant. In addition to providing written documentation, the information can be presented on posters and in PowerPoint presentations if the case goes to trial.

Whether the case settles out of court or goes to trial, the medical witness' written testimony may be used as a crucial piece of evidence to determining if the LTC facility or health-care provider acted negligently, said Dr. Smith. He advised medical expert witnesses to keep following points in mind when preparing written testimony:

Never give legal advice or represent yourself as a lawyer. This is an easy mistake to make.
State the standard of care for the case. A medical expert witness may refer to clinical practice guidelines made by the AMDA or the American Geriatrics Society. The standard of care is considered to be what an ordinary reasonable practitioner would have done under similar circumstances.
State what the treating physician or LTC facility should have done to treat the patient according to standard of care guidelines.
State what the physician or LTC facility did do, and how it deviated or did not deviate from the standard or care. If the treatment did deviate from the standard of care, indicate how it caused harm. This is the most difficult part of a written testimony and is often done incorrectly. Every chart has errors, many of which have no link to harm. The medical expert witness must prove to a reasonable degree of medical probability (greater than 50%) whether or not the treatment caused harm. The recommended course of treatment may not be obvious and many alternatives may also be reasonable. "In order for an act or omission to be a proximate cause of a poor outcome, it must meet the test that the outcome would not have occurred were it not for the act or omission," stated Dr. Smith.
If you represent the defense, you may be asked to write a defense letter. This letter should be a response to the lawsuit and refute the plaintiff's claims.
Find literature that provides evidence of the recommended course of treatment. Rely on medical literature to support your position. Unfortunately, LTC medical practice tends to lack literature on the inevitability of poor outcomes in many clinical situations. "Too many plaintiffs' medical experts seem to believe that if there was a bad outcome, it must have been someone's fault," concluded Dr. Smith.

--RM

Supporting Roles

Understand & finesse your role as an LTC medical witness