Lessons from a Doctor's Recent Trial Testimony

TASA ID: 3656

Recently, I testified as a plaintiff internal medicine expert in a trial located in California, against a primary care doctor.  This was a missed breast cancer diagnosis case, where the jury awarded a $1.9 million verdict.  The jury was hung against the radiology group, despite the fact that they sent her the wrong letter in which she was congratulated on a normal mammogram, when in fact it showed suspicious breast calcifications.

When I first reviewed this case, it appeared that the primary incompetence and the focus of blame should have been against the radiology group.  After all, that mistake of misrepresenting her findings to the patient with the wrong letter was very clear cut.  She relied on this information, subsequently, lost her job and insurance, and didn’t get another mammogram until over two years later, when she saw a new primary care doctor because she found a troublesome breast lump.  Her medical investigation, at that point, led to her new diagnosis of Stage 4 Breast Cancer.

Yet, there were contributory factors of blame against the primary care doctor.  Indeed, the primary care doctor assigned the medical care to a nurse practitioner, who only worked one half day per week.  There appeared to be no supervision of her care and there was no scheduled follow up.  Yet, despite that, the medical records clearly revealed that her diabetic medications were refilled by phone for the next 18 months, without any documentation or notice to schedule an appointment or repeat her mammogram (and, they had received the correct mammogram report letter).

And yet, even more damaging to the primary care doctor was his own testimony.  In his deposition, he pointed out that he is an endocrinologist and has no interest in women’s health issues.  For those problems, he assigns medical care to his trusted nurse practitioner.  Furthermore, he added that ever since this patient decided to sue him, his interest in her had gone down to zero.

It appeared that part of the defense strategy was to assign blame to the patient for her own omissions in not returning for medical care.  On her behalf, I looked at the jury and pointed out that the medications which were refilled for 18 months were not sleeping pills, but rather diabetic medications.  I explained that diabetic medications do not make you feel any better, but instead one takes them because they trust the medical principles that doing so provides better health.  Therefore, if someone had suggested to her that she needed to repeat her mammogram, she would have clearly complied.

I remember when saying that, how I became aware of the quality which the jury was listening to me.  Their level of attention was indeed quite noticeable. It reminded me that a successful medical expert needs to come off unbiased and speak in simple terms that an unsophisticated jury can understand. 

But, most importantly, this case represented an example of how not to testify, if one is accused of medical malpractice.  The level of arrogance and dismissal that this accused doctor revealed during his own testimony likely created lasting impressions for the jury.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.