Testifying in Malpractice

BY

Michael Blott,D.C.,FAFICC & Gary Lewkovich,D.C.,FAFICC

Malpractice lawsuits against chiropractors are more common now than twenty years ago. The sad part is that this increase is not because chiropractors are hurting more patients, but because chiropractors have become successful enough (have deeper pockets) to attract the attention of Malpractice attorneys. Some chiropractors place themselves at the mercy of the court presuming all they need is the truth and the truth will prevail.

Unfortunately human nature can rationalize the truth in different ways.

Chiropractors while very good at doing what they learn in school, are not very good at what Attorneys learn in school. In the legal world there are laws we are somewhat familiar with. They follow common sense most of the time. But many of the laws and rules have no relevance to our daily lives. We are unfamiliar with them and donít understand them. A malpractice case has aspects that relate to nothing in the chiropractorís understanding.

To begin with, a malpractice case does not occur over night. Several steps will take place before the doctor is aware that his nightmare is beginning. The malpractice attorney will ascertain the chances of winning a settlement against the time, money and effort he will need to invest. An expert chiropractor will be solicited to review the available information. Some experts take a look at the whole case and give an opinion on all the information available. Other experts focus only on the errors that may have very little or nothing to do with the key issue of negligence. Before a trial can be scheduled, a judge must determine that the attorney can support a case of error on the part of the defendant doctor.

Declaring the expert chiropractor is prepared to testify on substandard standard of care easily does this. The judge will not know the opinion of the expert chiropractor is that the records are difficult to read and the doctor used a CPT code that may be inappropriate. Now the defendant chiropractor must prepare to fight a case just as if the expert had relevant testimony. The doctor probably will win, as most chiropractic malpractice cases typically resolve in the favor of the doctor. Winning, however, will not replace the lost time/money from work and the emotional stress endured. The malpractice attorney in this case is probably counting on the "hassle" factor to persuade the defendant doctor to pay up and avoid the pain.

The point in this exercise is that the expert chiropractor told the truth. The truth in this case had literally nothing to do with the issue of negligence. The truth was told but justice was not served. The expert in this case did little more that allow a frivolous case to abuse the system.

As a profession we need to understand the consequences of our opinion.

The expert chiropractor should make every effort to assess the relationship between the alleged substandard practice and the bad outcome, making clear distinction between medical malpractice and medical maloccurence. Therefore, the expert chiropractor should be prepared to assess, within a reasonable medical probability whether the defendant was negligent and if so, whether that negligence caused the bad outcome.

  

The chances that you will be asked to present expert testimony in your career are fairly certain. More attorneys are pursuing chiropractic malpractice cases. Donít fall into the following traps if you are asked.

1. Do not allow the attorney to declare you an expert until you have had the chance to review the available information and have presented your opinions to the attorney.

Many times an attorney will declare an expert (especially one with an impeccable reputation) without the expert reviewing the case or even being aware of their declaration. This is an attempt to save money or intimidate the other side with the belief that you will have damaging testimony.

2. Reveal all of your opinions both damaging and supportive.

A good attorney needs to know the weaknesses of a case as well as the strengths.

The other side will be asking your opinions on many issues before trial, in deposition.

Not being prepared to answer pertinent questions may disqualify you as an expert.

3. Do not testify only on issues not germane to the act of negligence that caused the alleged malpractice.

As discussed earlier telling the truth is not the only criteria in ethical and moral testimony. You are a volunteer witness. You have a professional moral and ethical responsibility to see that justice is served. Testifying on non-germane issues only obscures what really happened.

4. Do not be an advocate.

The parties in question have hired their advocates in the legal representation that they have chosen. You are serving the court, by giving opinion and clarifying facts presented to the jury. It is your task to help the jury understand the facts that are not part of the lay personís normal life.

There are enough "experts" that have sold their soul. Be responsible to your profession, the public you serve and your conscience.