RE: Why I Recommend Against Testifying As a
Subsequent Treating Physician
From: Richard Boone, Esq.
Because a number of readers have inquired about
them, let me try to express my reasons for
strongly recommending against testimony as a
standard of care expert if you are the plaintiff
patient's subsequent treating physician.
By way of introduction, let me make it clear
that "subsequent treating physician" means that
you are actively treating the plaintiff patient
and trying to fix what the predecessor doctor
may have damaged.
1. Testimony in this situation makes YOU a prime
target for a negligence claim arising out of
YOUR care of the plaintiff patient.
An astute defense lawyer will try to neutralize
your testimony against his client by using
the "SODDI" defense (It stands for "Some Other
Dude Did It.") In this scenario, the defendant
will try to blame all of the plaintiff patient's
current problems on YOUR treatment, not his or
her own treatment. In such cases you will
quickly find yourself on trial. Frequently, you
will be on trial as an actual defendant because
the Plaintiff Patient's attorney, in search of a
paycheck for himself, will amend the lawsuit to
sue both the original defendant and you.
On occasion, you may find yourself in trial in
the capacity of a "third-party defendant"
because the defendant has sued you for what is
known as "contribution" or
perhaps "indemnification." On other occasions,
you will be on trial as what we call an "empty
chair" defendant (i.e., you won't actually be a
formal party to the litigation -- yet -- but the
defense will blame it all on you anyway). In
any event, your treatment will become the focus
of an effort to show that you were negligent and
you will either have to defend yourself (if
you're formally brought in as an actual party)
or at least respond to all of the criticisms.
2. Your testimony on standard of care issues
will, in all probability, not be as effective as
that of an impartial expert.
In addition to the potential exposure from such
testimony, your own testimony is more apt to be
subject to an attack on your credibility on the
grounds of bias. All malpractice trails
ultimately are resolved based upon which expert
the jury finds more believable (or "credible" in
lawyer-speak). If you are the plaintiff
patient's subsequent treating physician your
testimony is much more prone to attack on the
grounds that you are biased in favor of the
patient. There are a lots of different ways to
go about destroying your credibility in this
fashion and a good defense lawyer will
undoubtedly use as many of them against you as
he or she can apply. So, there's a really good
chance that your testimony won't be very
effective on your patient's behalf, even if you
give it. Personally, I do not subscribe to the
theory that "A bad expert is better than no
expert at all."
3. You're going to wind up with a very angry
neighbor who will try to find some way to repay
your (assumed) treachery.
If you're the plaintiff patient's subsequent
treating physician the chances are excellent
that you practice in the general vicinity of the
defendant physician. The chances are also
excellent that, sooner or later, that doctor
will treat a former patient of yours who isn't
happy with the results of your treatment.
Revenge is sweet and, as we used to say in the
Army, "paybacks are hell!" So, unless you are
the perfect physician human being who never,
ever does anything wrong and who never, ever has
a dissatisfied patient, you may want to consider
the wisdom of starting a war with another
practitioner who is in a position to do you harm
in return.
Finally, that's the best summary I can give in
less than 50,000 words for why acting as the
standard of care expert against a prior
physician on behalf of a patient you are
treating is the second best way I know to cause
yourself pain and heartache.
Richard W. Boone, Sr., Fairfax, VA,
RWBoone@aol.com
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