Steven I. Kern, Esq.
Authors and Disclosures
Posted: 04/23/2010
Introduction
It's a physician's second worst nightmare: Your partner, friend, or
colleague has been sued for malpractice, and you've been subpoenaed by
the plaintiff to give testimony. What's worse, you believe your
partner's care did indeed deviate from recognized standards.
While you want to be honest, you're reluctant to say things that could
ruin your friend's career.
Fortunately, the situation may not be as bad as you think.
You can be compelled to testify about what you know and what you did.
But you cannot be subpoenaed to offer an opinion on what your
colleague should have known or should have done. Courts distinguish
between factual testimony -- your knowledge of what you saw, what you
did, and what you said -- and what you think about what someone else
did.
Your beliefs about what someone else may or should have done are for
sale. That's why experts get paid for their testimony. They offer
opinion, not personal knowledge. You have every right to refuse to
sell those beliefs. Expert testimony generally cannot be compelled.
Physicians can offer this service, and when they do, they usually get
paid for it.
As for your factual knowledge, you have a legal obligation to testify
about what you know. Your only compensation will be, in most
instances, reimbursement of your travel costs and, if subpoenaed for a
deposition rather than court, perhaps reimbursement for time lost from
work.
What's Fact and What's Opinion?
Unfortunately, the line between opinion testimony and factual
testimony is not always clear. For example, a question of why you
performed a particular test or why you made a certain diagnosis could
be considered an objective question, not a subjective one -- even
though your answer may be that your decision was based on your opinion
that the patient may have had a specific underlying illness or
condition. This is because you relied on this opinion in your decision-
making. What you relied on is a question of fact, not of opinion.
By contrast, if you are asked your opinion about what your partner
did, you will probably not have to answer. (This is why lawyers go to
law school).
Even your factual testimony could implicate a colleague. For example,
if you ordered an echocardiogram because you suspected heart disease
but your colleague failed to order that same echocardiogram when
confronted with the same symptoms 6 months earlier, your testimony
could be used against your colleague, even though your actions
resulted from your own opinion.
Since the line between opinion and fact can be blurred, you should
consult an attorney before testifying. Chances are that the attorney
will want to accompany you to your testimony. If you contact your
malpractice insurer, it will probably provide counsel to you.
You Can Ask, but Be Cautious
If you do not want to involve your malpractice insurer you may wish to
speak with your colleague's attorney to determine why you are being
called and the scope of the testimony that the plaintiff's lawyers may
want to elicit. Discussions with your colleague's attorney are
considered privileged in many jurisdictions, so you will not need to
worry about what you discussed being disclosed in discovery. Of
course, you should always consider contacting your own healthcare
attorney first for advice.
While you may want to discuss your testimony with your colleague,
these discussions will not be privileged and may compromise your
credibility at trial because you may be required to disclose what was
discussed. It's best to postpone these conversations until after you
have consulted an attorney.
There is nothing to prevent you from offering your opinion, if you
want to. Certainly, if you believe that your opinion will be helpful
to your colleague, or if you feel ethically obligated to a patient,
you may want to offer your assistance.
If you do decide to testify against a colleague, understand that this
may well end the relationship. To reduce this risk, and as a courtesy
if nothing else, you may wish to let your colleague's attorney know
why you have made that decision so that she can convey the reasons to
your colleague in a way that may help him understand your reasons.
Sent from my iPhone
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