"Too many good docs are getting out of the business. Too many OB/GYN's aren't able to practice their love with women all across the country."
Poplar Bluff, Missouri, 6 September, 2004


I was really surprised to see this title for a presentation to an attorney group, but even more surprised when I saw the presenter was an attorney I knew and respected, and thought probably respected me. I felt laser sights upon my forehead, and even wondered if somehow I was individually responsible for some of the ire and frustration I was expecting to be presented. At the very least I hoped that I was slated to be spared when the world got its cleansing.

I contacted the presenting attorney, only to find that the title was intended to be provocative, and it hit its mark. The plan was actually to discuss common attitudes among attorneys regarding medical experts, and to suggest that perhaps defense and plaintiff attorneys view experts in vastly different lights. So different, in fact, that the role of the expert was being adversely altered. Indeed, the intention was the opposite of the tenor of the title - it was to suggest that there was much a medical expert could lend to properly understanding the clinical matters in a case at hand.

Seeing that advertisement was fortuitous since I have recently been deeply concerned about the issue of the position into which the expert is unwittingly put by the opposing views of expert testimony and some recent rulings, and I have seriously been contemplating suggesting that something be done about it. I have been working to enhance the ways physicians could provide better education for attorneys and juries on the basic medicine and medical issues in cases.

I note that some attorneys openly detest experts, surprisingly especially their own. Amazingly, I see little insight into the dual truths that doctors in no way created the process by which experts are used, and more importantly that doctors don't want it to be that way. Somehow, an expert is expected to both perform in the narrow constraints of a system made, and entirely controlled by others, yet hated for doing so. I know with deep conviction that doctors far prefer to be seen as champions of truth, honor, and humanitarianism, especially in the legal arena. Physicians are typically dismayed to find the majority of time spent in testimony revolved more around casting aspersions upon the honor of witnesses instead of on issues of medical substance? Who does that help? How does that help the jury find real truth? I really doubt one could muster scientifically defensible evidence that the current system reliably detects truth and applies it fairly. Why is it that attorneys utilize a scientifically wholly untested method, yet malign experts for what they think are unscientific conclusions? A double standard, for sure. This is tragic, especially when a far more defensible system is possible utilizing methods already tried and true.

I don't believe that doctors serve best when in an adversarial role, yet it would be irresponsible to withdraw from the issues raised in personal injury cases. Doctors by their nature and training are nurturers, not adversaries. An ideal utilization of their knowledge would place them in a nonadversarial role, one that is nurturing to society. I am concerned that there is such a sharp contrast between their fine professional conduct at the bedside and the way many attorneys lead juries to view doctors in the courtroom. Few experts actually knowingly lie or are stupid. More are viewed as lying by attorneys who don't know the medicine yet arrogantly believe they know it more than the doctors do. If you live by the sword you die by the sword. If you expect to see the world full of greedy, lying doctors, that is precisely what you will observe, the truth notwithstanding. Worse, the system promotes this distortion.

I think the resolution to all this conflict lies in taking the experts out of the adversarial role in which they cannot possibly optimally perform. Doctors are capable of rendering opinions about fundamental issues like what the standards of care are, what the use and limits of studies are, what therapies are available and their proper use. We do that thousands of times every day, and in peer review and quality management quite definitely enforce these actions on a regular basis. Personal injury suits are a small portion of the situations in which by peer review a physician's behavior is examined, and where necessary, modified. Remember that physicians do routinely provide care and effectively treat the majority of their charges. Why not use that expertise rather than hobble it?

The first step is to reinvent the system so the medical expert is naturally viewed as a teacher. A teacher who is only on the side of truth.

Let the physicians be assembled on odd-numbered panels, to render opinions for the jury to examine, and the jury can determine whether they believe the facts of the case match the standards promulgated. That puts the doctors in a neutral role with respect to the suit but not in a neutral role with respect to the truth. There would be no need for the doctors to be seen as either unfairly picking on a defendant or overlook glaring error in defense of the profession. Ultimately it becomes in the best interests of both plaintiff and defense to have excellent clinical and scientific data available to the jury. No longer would there be some advantage in obfuscating the truth, putting up smoke screens or offering flimsy assertions of causation. The legal strategies and theories may become simpler and easier for the juror to understand and accept. What a concept!

To maintain neutrality he panels of experts could be either hired by both sides jointly or by the judge. Both plaintiff and defense could participate in selection of the panels, but neither side could control the outcome by selection of the panel. For example, plaintiff could have one nomination, defense another nomination, and the judge could make the final determination by appointing the third member, the chair of the panel.

Medical panels in the form of Louisiana's don't work very well because there is not a separation of roles of expert and decider of the outcome of the suit. The Louisiana medical panels, as I understand them, may both provide expert opinions about the case and come to some ultimate determination in the matter. I believe I have seen situations in which the panel seems to have (or are made to seem that they have) skipped over the role of expert and proceeds to make a final determination. Doing so simply heightens the adversarial effect of the panels, since in effect the panels are viewed as participating as "The Medical Establishment" versus the world. It would be far better if the medical panels were entirely devoid of determination of final disposition of a case, and simply concentrated on formulating opinions on the technical details.

Putting this idea of a panel to work could be undertaken in the following manner: A plaintiff attorney would evaluate a case. Before the suit could be filed the attorney would have to have a written report by a practicing physician to support both negligence and causation. However, in contrast to the current situation, that physician subsequently would not be part of the presentation of evidence or opinion to the jury (though perhaps simple education of the jury would be OK). Discovery would then ensue, but at some point the judge would appoint the medical panel who would review the evidence including all medical records and all discovery of any medical relevance. No woodshedding allowed. Nothing could be presented at trial not presented in full detail to the panel beforehand.

The panel would be allowed to ask for additional information even after depositions of the parties, perhaps by interrogatories, until the medical panel votes that it has collected enough information to render a penultimate opinion. If from a medical perspective additional expertise is needed, the panel could petition the judge to hire additional experts, thus eliminating the assertion that the testifying expert is not appropriate to the medical determination of negligence or causation. The panel could then use consultation of expertise in parallel to the pattern actually used in routine day-by-day exercise of prudent medical practice. Both the plaintiff and defense could ask questions of the panel prior to trial in the form of either deposition or informal pre-trial conference.

To ensure that the final opinion presented to the jury is fair and balanced, the panel could be present at trial to hear the fact witnesses in their final presentations. After both plaintiff and defense have presented, the panel would present its collective opinion as well as dissenting opinions from the majority, similar to the pronouncements by the U.S. Supreme Court. Presenting the opinion in this manner favors an expression in medically and scientifically defensible and optimal terms, using the latest advances in evidence - based medicine. For example, instead of the current system in which an attorney asks an individual physician whether a standard of care was breached, in the proposed system the panel would indicate what the majority view was of the standard, and what is the medical and scientific basis for that standard associated with a rating scale of 0 to 5 of the confidence that the opinion is appropriate to this case. We will have to discuss evidence-based medicine more under separate cover.

The point is that the jury could hear what the majority and possibly minority views are, why and to what degree of confidence that opinion is regarded by its bearers to be true. The jury would then decide whether the panel made sense (i.e., was objective or simply self-serving), whether the opinion is relevant, and how the defendants stacked up against the standards and issues of causation. The doctors are then in their best roles -- nurturers of those suffering (be they plaintiff or defendant), teachers of the judge and jury and proponents of truth rather than hapless apparent advocates in an adversarial system less guaranteeing the truth will come out than an outcome will occur. The jury is still the trier of fact and the panel is not. The jury could decide that the panel was off base and come to a different conclusion, or could agree that the panel's position was appropriate.

If we did something like this, attorneys would not need to kill any experts. Nor would they be inclined to. Doctors and attorneys could actually be friendly to each other, and learn from what is honorable and desirable in each other's professions. There is so much to be gained by improving communication and professional respect between doctors and attorneys. If nothing else, more insightful jury decisions.

  * Dr. Davies is Director of ICU at Houston's Methodist Hosp. and Baylor Medical School's Critical Care Training Program as well as President of MediScene. The above is copyright MediScene, Ltd. 1998.

    This article is Provided by the MediLegal Department of MediScene, a medical resource intended to enhance the quality of information and education available to legal professionals. MediScene offers CLE courses such as Med School for Attorneys & Medicine for Paralegals - live seminars for legal professionals focused on understanding the medical issues encountered in law practice today - and tomorrow.