10/31/2022    Chris Robertozzi, DPM

Alleged Malpractice (Virginia)

This seems to me to be an example of a case that
should have never been filed. From reading the
article, it appears the Plaintiff’s expert lied at
trial about the cause of the postoperative
complication. Rest assured that this isn’t the
only case where the Plaintiff’s expert has lied.
For the last few years, I have had the opportunity
to defend my fellow colleagues in malpractice
cases. The majority of them have outrageous lies.
For example, the first case I defended, without
going into all the details, the plaintiff’s expert
stated the surgery was unnecessary because
everyone knows that gout is caused by trauma.
Consequently, medication should have been
prescribed and no surgery should have been
performed.

I filed a complaint with NJ State Board of Medical
Examiners since the case was filed in New Jersey
and Maryland Board of Podiatric Medical Examiners
as the Plaintiff’s expert was from Maryland. Both
Boards came back with essentially the same answer.
This isn’t in their jurisdiction. I then sent
another letter asking whose jurisdiction is it
under. I received no response.

We punish our grammar school children if they lie,
however, we allow physicians to not only get away
with lying but also to make a living while they
are doing it. This hurts everyone of us whether
you are being sued or not as the premiums every
year are based on the previous years number of
cases and settlements. There have been countless
attempts at tort reform to fix this problem
including the American Medical Association’s push
with the passage of Obamacare. It never gets
addressed.

Obviously, tort reform isn’t going to happen. As
Dr. Hultman would say, we need a game changer.
Instead of approaching it from changing the law,
let’s approach it from the side of the expert
witness. If the expert witness was found guilty
of lying on their report, deposition or in court,
then the state that they have their license or
licenses in, should suspend them from being
allowed to be an expert witness. This should be
posted on a public website so anyone who wants to
know who these individuals are can find out.
There should be zero tolerance. No, one little
lie like gout is caused by trauma should not be
allowed. By the way, that expert witness lied 13
different times between their report and
deposition which is under oath and constitutes
perjury.

Two weeks ago, I wrote to the New Jersey State
Board of Medical Examiners asking them again whose
issue is this? They do not have a code of ethics
for expert witnesses, but they do have a code of
ethics it seems for every other violation you
could think of. In all honesty, I doubt whether
I’ll hear back this time from the NJ State Board
of Medical Examiners. I carry no weight there.

Perhaps we need to start a national movement, but
by state with the multiple medical associations,
including hospitals, speaking as one to the state
boards about this issue. Judging just from this
one example, it can be seen that the problem isn’t
limited to podiatry. Malpractice was listed as the
number one way the average person could get rich.
Lovely! If a state board doesn’t have a code of
ethics that involves expert witnesses, then they
need to get one. I’m sure there are great
examples out there for those that don’t have one
which they can adopt.

I would be interested in spearheading this
project. If you like the idea and would be
willing to coordinate efforts in your state with
me, you can contact me at rrobertozzi@afacare.com.
It would be great to hear from the general
podiatric community about your feelings on this
issue. If you have a better idea to fix this
malpractice issue, please share it. We have great
minds in our profession. Working together we can
accomplish much more than if we go it alone.

Chris Robertozzi, DPM, Newton, NJ

Other messages in this thread:

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11/11/2022    Chris Robertozzi, DPM

Alleged Malpractice (Virginia) (Jay S. Grife, DPM, JD, MA)

Dr. Grife makes some valid points about how
attorneys for the plaintiff and defense get paid.
That can in itself be a lengthy discussion. I am a
little confused, however, about other statements
that he made, all of which revolve around the word
lie. Webster defines a lie as an “intentionally
false statement or impression”. That is completely
different from the fact that experts are retained
to provide their opinion based upon the facts, in
Dr. Grife’s own words. He asks is the expert lying
who under oath in court testified that the only way
a patient could have tarsal tunnel is if the
patient was confined to a wheelchair? The answer is
yes.

You can go to any podiatric or orthopedic book on
tarsal tunnel and they will list other reasons such
as excessive pronation, posterior tibial
dysfunction, trauma and so on. So, if there is
literature out there that contradicts the expert’s
statement then by Webster’s definition, which I am
using, it is a lie. I am open to hear about other
documented definitions of a lie if it is felt this
one doesn’t define the word lie the way you
understand it.

It is not an opinion when it goes against well
documented literature which makes it a fact.
According to Dr. Grife, experts opine based on the
facts not theoretical assumptions.

The example that I used is 180 degrees at the other
end of the spectrum. Yes, there are multiple
triggers of gout such as food, renal excretion
issues, myeloproliferative disorders and genetics.
However, they all produce the one etiology of gout,
fundamental disturbance in purine biosynthesis.
After looking through rheumatology, medical and
podiatric books on gout, I did a literature search
to learn more about trauma as a cause of gout. I
found nothing that mentions trauma as a cause of
gout. How can it be said that it is possible?
Consequently, by Webster’s definition which I
referenced, it is a lie and cannot potentially be
an accurate statement. I am willing to retract that
if someone can send me literature (just one article
or case study) that shows that trauma is a cause of
gout.

I am not asking anyone to condone the fact that I
want to sanction those who lie about a statement
that could potentially be true when there is no way
that trauma can cause gout. It does not change the
metabolism of purine. We need to stand up for
what Is right. We must make our decisions with
integrity. Yes, the expert witness is to provide
an opinion but that doesn’t mean that it gives the
expert the right to create causes for a diagnosis
or completely ignore the literature.

I certainly don’t have the breath and depth of
experience in litigating malpractice cases as Dr.
Grife. In my limited experience, what I have seen
is that the cases that I have been asked to defend
are patients who have had a bad result from
surgery. The reason for the lawsuit is usually one
of the listed complications on the informed
consent. No doctor wants their patient to have a
bad outcome. It’s bad public relations and they
know it. Are there cases where things are done
inappropriately? Yes, but they are few and far
between. I have only read about them. Fortunately,
I have not been asked to defend one. A majority of
cases are settled at the last minute. The
podiatrist is bullied and intimidated at the
deposition and at any time there is interaction
between the defendant and plaintiff’s attorney so
that he is willing to settle and not go through the
embarrassment in front of a jury.

Charting seems to frequently be a focus. The
thought process is that if the doctor charted
inappropriately then he must have performed the
surgery inappropriately. I will be the first to
admit that the charting could be better in every
case. Nevertheless, poor charting doesn’t
constitute malpractice nor does it imply that the
surgery was done incorrectly. The goal seems to be
to discredit the physician in any fashion possible
to win the case. Justice seems to be lost. The
impression I am left with is that it seems to be
about a win and the money. That isn’t only true for
health care but also pretty much everything else.
Just take a look around at the shortage of things
and the prices when they are available. It really
doesn’t speak well of the type of society we have
become.

The many books I have read about Obamacare and
health care in general, all talk about insurance
companies complaining about over utilization by
doctors. Then, in the next paragraph or two, they
pinpoint the reason for the over utilization as a
defense against malpractice. But at the same time,
they don’t have a solution to the problem.
Everyone pays the price for that as premiums are
based on the previous year’s losses. Even if you
haven’t been sued, the base price of your premium
is based on how everyone has done as a whole,
whether it is by region or national.

I hate it when I start to sound my age but life was
better when I was growing up. My goal is to try and
turn back the hands of time when people weren’t
hurting each other without a legitimate reason
(senseless shootings), when everyone went to the
aid of their neighbor when they were in trouble and
when we helped each other and never thought of
taking advantage of or hurting anyone. I feel sorry
for our children and grandchildren if we continue
down this road. Don’t you want a better world for
them? Then, we need to do something about it. We
must find solutions and be willing to carry them
out for the many problems that plague us. Sophocles
said it best when he said, “Rather fail with honor
than succeed by fraud.”

Chris, Robertozzi, DPM, Newton, NJ

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11/08/2022    Jay S. Grife, DPM, JD, MA

Alleged Malpractice (Virginia) (Chris Robertozzi, DPM)

I would like to comment in response to the numerous
doctors who wrote commentary as to a case of
malpractice in Virginia. The thrust of the
responses focused upon the testifying expert, in
our case podiatric surgeons, who provide their
expertise as opinions in medical malpractice cases.
It appears that the primary complaint from the
authors of those commentaries was that experts lie
in their testimony in depositions and in court. As
the former board-certified podiatrist as well as a
current attorney, I must respectfully disagree with
the term "liar."

Experts, whether retained for the plaintiff or for
the defense, are asked to provide their opinions
based upon the facts presented to them. As we all
realize, opinions vary. In my 25 years of being an
attorney representing plaintiffs in malpractice
cases (for clarification for those who do not know
me, I was advised by our own insurance mutual
company to represent plaintiffs and was never
afforded the opportunity to defend podiatrists
despite repetitive requests to do so. In addition,
I do serve as personal counsel for numerous
podiatrists as well as their practices in defending
cases), I have seen experts bolster their opinions
premised upon a weak factual foundation. This is a
far cry from calling an expert a liar in sworn
testimony.

Dr. Robertozzi made specific reference to a case
where the experts stated that surgery was
unnecessary due to gout being caused by trauma.
Certainly, we all agree that gout has many causes
and trauma can certainly reignite an acute gouty
attack. I agree that trauma is a rare cause of
gout, but it is a possibility. To call that expert
a liar for stating something that could potentially
be an accurate statement and seeking sanctions as
to that opinion is something I am unable to
condone. Allow me to provide you, the reader, with
the testimony of a defense expert in the only case
that I have ever lost in a jury trial. In that
case, it involved the diagnosis of tarsal tunnel
syndrome. The defense expert, under oath in court,
testified that the only way a patient could have
tarsal tunnel syndrome is if that patient was
confined to a wheelchair. Was that defense expert
lying in trial? In my opinion, she was testifying
as to her training and experience to the best of
her ability. My client lost that case due to that
testimony and I think most of us would agree that
the premise of that testimony was faulty.

So how do we best police expert testimony in
malpractice cases? I believe it is incumbent on
lawyers who represent plaintiffs as well as those
who represent the defendant doctors to retain
experts that will testify fairly and with well-
grounded opinions. In addition, it behooves
attorneys to review and analyze opinions of their
experts prior to any deposition or court testimony
to insure that the basis of those opinions are
factual. Do I really believe that all lawyers
subscribe to these tenants? Of course not.
Conversely, I remain appalled at the number of
doctors who continue to commit negligent acts in
the care of patients simply because they are
performing treatment and surgery beyond the scope
of their own capabilities or for pecuniary
motivations.

So, allow me to revert back to the allegations of
calling an expert who testifies a liar. In every
case that I have prosecuted during my 25-year
career as an attorney, I have only retained experts
who meet the standards to testify in a truthful and
factual basis. At the same time, when one of the
experts that I have retained advises that my case
does not hold water (My Cousin Vinny), I do not
shop around for an expert but simply realize that
this case is one that should not be pursued. As I
co-counsel cases throughout the United States, I
believe it is part of my responsibility as an
attorney and former podiatrist to insure that cases
of negligence in which I am involved are not
frivolous, and that any retained experts are well
qualified to provide truthful and honest testimony.
That should be the standard for all attorneys.

But the truth is that money talks. Here is the
dichotomy that you will likely be surprised at.
Plaintiffs’ lawyers gain an attorneys’ fee through
a contingency contract, generally for an amount
between 25 and 40% of the gross recovery, assuming
there is a recovery. These attorneys lose all costs
advanced and receive no fee if the case is lost.
That in itself provides impetus for accepting
cases. Conversely, defense attorneys, who are
retained by a defendant doctors’ insurance company,
gain a fee through billable hours. In other words,
for a defense attorney, the longer the case is
prosecuted, the more billable hours are submitted
to the insurance company and the greater the
attorneys’ fee. Defense attorneys gain a fee
despite the case outcome. For your information, I
have seen defense attorneys’ fees in one case
EXCLUDING costs, be in excess of $390,000.00
without a trial. Please appreciate that this is not
a slight at defense attorneys who are for the most
part honest and worthy adversaries. Some attorneys
I litigate against are my best friends. My point is
that both sides contribute to the malady of medical
malpractice.



Finally, as a tip to those practitioners who seek a
remedy to malpractice cases being filed, might I
respectfully suggest that doctors follow the
recommendations that are posted and lectured to by
their respective malpractice insurance carriers. I
believe it would amaze readers of this publication
if they knew that the abundance of medical
malpractice cases are against doctors who are
repeat offenders or violate one of the simple
principles their own insurers promote. To naysay
these suggestions is to bury your head in the sand.

As an aside, I triage approximately 40 or 50 new
potential cases per month. Of those cases, I
usually accept only one or rarely a second. It will
be my hope and pleasure to limit that rate of
acceptance to zero in the future.

Jay S. Grife, DPM, JD, MA