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

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