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Ann Thorac Surg 2005;80:381
© 2005 The Society of Thoracic Surgeons
Lancaster General Heart Center, 555 North Duke St, PO Box 3555, Lancaster, PA 17604-3555
(Email: lbonchek{at}prodigy.net).
The debate on the question, "Are thoracic surgeons ethically obligated to serve as expert witnesses for the plaintiff?" [1], was insightful and illuminating, but the persuasive arguments on both sides reveal that ethical considerations alone don’t provide a clear guide to right action. Because the question focused on ethics, practical issues were discussed only tangentially, but it seems to me that practical considerations provide clear directives if the question is rephrased as follows: "Should thoracic surgeons review medical records for plaintiffs?" [2].
In a long career, I have often been an expert witness for the defense, and when I have (rarely) recognized what I considered to be malpractice, I have said so, and advised the defense attorneys to seek a settlement. Infrequently, I have been approached by plaintiff’s attorneys, and though many surgeons refuse to talk to them, I do so for practical reasons. If, after objective review, a respected surgeon sees no malpractice, it is likely that no lawsuit will be filed and considerable harm will be prevented. In several cases, a lawsuit was being contemplated until my opinion was submitted that excluded malpractice. Even the most rapacious plaintiff’s attorneys will not waste time and money pursuing cases that have no merit, but if respected surgeons won’t review cases for them, they are forced to turn to professional witnesses, for whom this is lucrative work.
On the other hand, we must realistically acknowledge that malpractice occasionally occurs, and some patients deserve compensation. If one’s reluctance to review a plaintiff’s case stems mainly from concern about testifying, there are other ways to be involved productively. If one gives advance notice of one’s intent, it is reasonable to provide a verbal opinion as a guide to legal action, while declining to provide a written opinion or to testify. When I know the surgeons involved, this has invariably been my practice. One may even choose not to charge for this truncated service, which may not be very time-consuming; attorneys will then readily accept this restriction, and one will have done a satisfying service for the patient and the profession.
If one feels that malpractice was obvious and egregious, one’s choices depend on the situation. Though I have yet to testify for a plaintiff, I would be willing to do so, and am currently involved in such a case. In another case of flagrant incompetence, I provided a written opinion of malpractice at the request of a hospital’s defense attorney, who used it to persuade a recalcitrant surgeon to join the hospital in a settlement. In a case of obvious malpractice involving surgeons known to me personally, I referred the attorneys to another expert witness after discussing the case with him.
In sum, I feel there is much practical benefit in reviewing cases for a plaintiff honestly and objectively. If we don’t, someone less qualified and less objective will do so.
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