Forced testimony and the reluctant doctor

Personal injury attorneys sometimes refer their clients to one of “the usual suspects”, that is, a doctor whose practice concentrates primarily on people who are suing because of injuries.  One reason is that a treating physician who is disinterested in litigation or out right hostile to it can ruin a case.  I had an experience last month with a doctor who would not return my phone calls when I sought to set up his deposition.  This deposition involved medical testimony on behalf of his long time patient.  This highly skilled medical expert could have commanded a fee of several thousand dollars to testify.

I considered sending the doctor a subpoena along with the small witness fee to which all non-expert witnesses are entitled.  If he chose to ignore the subpoena, I could have asked the court to hold him in contempt.   I decided against this option since I suspected that his compelled testimony would be, shall we say, less than optimal.  It can be devastating to the case if the doctor is just going through the motions because he/she resents having to participate in the process, or worse, is hostile because his attendance was involuntary.  Contrast this with the doctors hired by the insurance companies.  They are almost always highly qualified physicians, schooled in the art of litigation, and well paid to register opinions sympathetic to their benefactor.

Truth be told, this doctor was very clear from the outset as to his reluctance to be involved in litigation.  He insists that all patients sign “waivers” in which the client agrees that the doctor will not be involved in litigation.  Apparently, he prefers to spend his time concentrating on healing patients rather than testifying in their lawsuits.  Can you imagine?  Many doctors ask when screening patients if the prospective patient has an attorney.  They may reject the patient if he or she has a lawsuit pending.

Query whether such a patient “waiver” is ethical per AMA Ethical Guideline #9.07 which states in part:

MEDICAL TESTIMONY:  “As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice.  If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.…  The medical witness should be adequately prepared and should testify honestly and truthfully.”

So I sent my client’s doctor a courteous but frank letter quoting this language and again requested his assistance in testifying.

I sent the letter for three reasons.  First, I hoped to change the doctor’s mind by emphasizing his ethical obligation to his patient.  Second, sometimes the doctor doesn’t even know that a lawyer is trying to obtain his assistance.  He may not have received any of my inquiries, because they were screened by his office staff.  My letter, marked “personal and confidential”, could have made it through his palace guard.  It didn’t work.  The doctor did not respond.

The third reason I sent the letter was to take the wind out of the sail of defense counsel.  I expected him to argue to the jury that the “usual suspect” doctor that I ultimately chose would not have been necessary had I called the treating doctor to testify.   He would have suggested that the treating doctor didn’t testify because his testimony would have been unfavorable to the plaintiff.  My letter to the doctor would help to rebut that suggestion.

And so, rather than pressing the issue, I sent my client to a “usual suspect”, who I knew would cooperate.  This hurt the credibility of the medical claim, but what practical choice did I have?

I invite you to give me your thoughts and solutions to this interesting problem.

A Biblical Basis for Personal Injuries Lawsuits

King Solomon said in Ecclesiastes, “There is nothing new beneath the Sun.”  This ancient adage applies to personal injury litigation.

Jewish law, as expressed in the Talmud, (Rabbinic Commentary on the Jewish Oral Law) compels one who injures a colleague to pay compensation in five ways.  One must pay for the colleague’s pain and suffering, medical bills, loss of past earnings, loss of future earning capacity and embarrassment.  Making restitution in this manner is considered one of the Torah’s 613 commandments.  Wouldn’t President Bush be shocked to know that.

One of the best known and most completely misunderstood verses in all of Scripture is “ayin tachas ayin; shen tachas shen. “  This is generally translated as “an eye for an eye; a tooth for a tooth.” (Exodus 21:24; Leviticus 24:20)  Many cite this verse in scornful attacks on the “vengeful G-d of the Old Testament.” 

Who can forget Tevye’s line in Fiddler on the Roof in which he decries that we shall all end up “blind and toothless” under this barbarous system?  Two wrongs ironically seem to make a right.  The audience’s laughter betrays a simple ignorance of the true meaning of this verse.

The Talmud proves both logically and through Scriptural analysis that the verse cannot be interpreted literally.  Rashi (the outstanding Biblical commentator of the Middle Ages) explains that “an eye for an eye” is not to be taken literally.  We don’t maim our fellow by taking his eye out or cutting off a limb. 

Rather, the Jewish sages who have interpreted this verse through history hold that “an eye for an eye” refers to monetary compensation.  We fine the offender the value of an eye.  Never has a Jewish court blinded or otherwise inflicted physical injury out of vengeance. 

This Biblically mandated system is not so unlike our own civil justice system of compensation for personal injuries.  If it is a slogan for anything, “an eye for an eye” is a slogan for an entire civil legal system; not criminal and not capital.

Within the context of the Talmud, we learn that this verse of Torah is not indicative of a vengeful G-d.  Rather, it represents G-d’s system of compensation where victim’s rights are protected and the perpetrator comes to understand the gravity of the offense.

The Hypocrites of “Tort Reform”

We all know that President Bush is a relentless advocate of “tort reform”. But did you know that in 1999, then Governor George W. Bush sued Enterprise Rent-A-Car over a car accident involving daughter, Jenna? Although his insurance would have covered the repair costs making a lawsuit unnecessary, Bush filed suit against Enterprise, which had rented a car to someone with a suspended license. For more details see: http://www.patridiots.com/000844.html.

Pennsylvania Senator, Rick Santorum is another big “tort reformer”. Less well known is that a Virginia jury awarded Senator Santorum’s wife $350,000 in damages on December 10, 1999. She charged that a chiropractor’s negligence caused her permanent back pain. Roll Call, a newspaper that covers Capitol Hill, reported that Santorum testified that his wife might not be able to actively campaign for him.

Throughout the trial, Santorum aides declined to comment. After the trial, they issued a statement from the senator saying: “The court proceedings are a personal family matter. I will not be offering any further public comments, other than that I am not a party to the suit. But I am fully supportive of my wife.”

U.S. Senator Trent Lott, a famous proponent of caps on the amounts for which people can sue, sued State Farm over its refusal to cover his Hurricane Katrina property losses. Shouldn’t there be a cap on the amount of damages he gets?

Prior to the storm Senator Lott has uttered the following gems: “I’m among many Mississippi citizens who believe tort reform is needed.” “It’s sue, sue, sue… That’s not the answer.”

Hurricane Katrina destroyed Lott’s 154-year-old waterfront home in Pascagoula, Mississippi. The house was worth $750,000. On the Senate floor Lott pounded his fist and said homeowners along the Gulf Coast are fed up, warning that insurance companies better do the right thing or there will be “hell to pay…” State Farm says the storm surge destroyed the home, and since Lott didn’t have flood insurance, he isn’t entitled to coverage.

Query the basis for filing suit against his homeowner’s insurance carrier for flood damage, when a basic homeowner’s policy does not, and never did, cover flood damage.

It seems that when Trent “Humpty Dumpty” Lott files a lawsuit, it is not considered “suing”… “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “It means just what I choose it to mean — neither more nor less.”

Pennsylvania Senate Majority Whip Jeffrey Piccola recently sued orthopedists for medical malpractice. Senator Piccola is a co-sponsor of the Corman/Piccola bill that seeks to drastically limit joint and several liability. It would limit the liability of entities that have been proven to be at least partially culpable for a harm. This would increase the risk that the financial burden of treating an injury will fall upon the injured person.

In future e-newsletters, it will be the doctors’ turn again. We’ll explore the concept of doctors and other “experts” who sell their opinions to the highest bidder. We’ll also investigate doctors who refuse to testify in court, nothwithstanding their ethical obligation to the patient.

Editor’s Note: I am not implicating all doctors and all politicians, just those whose hypocrisy merits exposure.

Doctors vs. Lawyers – Who’s the Evil?

The drumbeat goes on.  Over and over we hear the tales of doctors fleeing the
state to avoid outrageous malpractice premiums.  And they blame the lawyers,
of course.  Let’s look a little deeper and see whose hands could use a bit more
scrubbing.

Did you know that it is commonplace for doctors to charge literally thousands of
dollars for a few minutes of their time to testify in a legal case?  I am working
on a case right now in which the doctor’s written policy calls for a charge of $3,000
for a one-hour deposition.  For each additional hour or part thereof, he charges an
extra $2,000.  That means that if his deposition takes one hour and one minute,
he expects to be paid $5,000.

If that’s not bad enough, this doctor also charges an additional $750 for any time
spent with the lawyer preparing for the deposition.  P.S.  If the deposition is
canceled “for any reason whatsoever, these fees are not refundable.”

These charges are ultimately the client’s responsibility, although typically the lawyer
will pay the doctor and only be reimbursed at the time of settlement or verdict.  So
it’s not the lawyer who gets soaked, it’s the client.

Doctors’ depositions are typically taken in the doctors’ office, at a time that is
convenient to the doctor.   This particular doctor charges $5,000 for a ½ day court
appearance and $10,000 for a full day appearance.  Don’t believe me?  I’ll be happy to
fax you this doctor’s written policy to prove it.

How do they get away with this?  Simple.  The doctors know that the client and lawyer
need them and have no good choice but to pay the freight.  The only other option is for
the lawyer to refer the client to another doctor who charges less.  This, unfortunately,
exposes the client and new doctor to devastating cross-examination at trial.   The
opposing lawyer may suggest the client went shopping for a medical opinion because
the client’s first doctor did not believe the injuries were real.

I’ve got much more to say about doctors.  But you’ll have to wait a bit for that.  Stay
tuned for the next month’s post—Politician Heal Thyself!!  I will reveal to you some
of the litigious exploits of some of our country’s biggest “tort reformers”.  You won’t
want to miss my discussion of Dick Cheney’s first combat experience, shooting an
armed but elderly lawyer.

Stella vs. McDonald’s – Part II

Last time we examined the tip of the iceberg known as Stella v. McDonald’s a/k/a the lady who spilled coffee on her self and sued Mickey D. Out of such stuff do urban legends grow. Let’s look a bit beneath the surface.

An acquaintance forwarded the email below in jest. Unfortunately he recalls the details of these “stories” saying “I liked the one about….” Before you read these “stories” understand that many if not all have been debunked as false.

Time once again to review the winners of the Annual “Stella Awards.” The Stella Awards are named after 81 year-old Stella Liebeck who spilled hot coffee on herself and successfully sued McDonald’s. That case inspired the Stella Awards for the most frivolous-ridiculous-successful lawsuits in the United States.

Here are this year’s winners:

5th Place (tie): Kathleen Robertson of Austin Texas was awarded $80,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict considering the misbehaving little toddler was Ms. Robertson’s son.

5th Place (tie): 19-year-old Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbor ran over his hand with a Honda Accord. Mr. Truman apparently didn’t notice there was someone at the wheel of the car when he was trying to steal his neighbor’s hubcaps.

5th Place (tie): Terrence Dickson of Bristol, Pennsylvania was leaving a house he had just finished robbing by way of the garage. He was not able to get the garage door to go up since the automatic door opener was malfunctioning. He couldn’t re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation and Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found and a large bag of dry dog food. He sued the homeowner’s insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of $500,000. In my opinion this is so outrageous that it should have been 2nd Place!

4th Place: Jerry Williams of Little Rock Arkansas was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor’s beagle. The beagle was on a chain in its owner’s fenced yard. The award was less than sought because the jury felt the dog might have been just a little provoked at the time by Mr. Williams who had climbed over the fence into the yard and was shooting it repeatedly with a pellet gun.

3rd Place: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on a soft drink and broke her coccyx (tailbone). The beverage was on the floor because Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument.

2nd Place: Kara Walton of Claymont, Delaware successfully sued the owner of a night club in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses.

1st Place: This year’s runaway winner was Mrs. Merv Grazinski of Oklahoma City, Oklahoma. Mrs. Grazinski purchased a brand new 32-foot Winnebago motor home. On her first trip home (from an OU football game) having driven onto the freeway she set the cruise control at 70 mph and calmly left the drivers seat to go into the back & make herself a sandwich. Not surprisingly the RV left the freeway crashed and overturned. Mrs. Grazinski sued Winnebago for not advising her in the owner’s manual that she couldn’t actually do this. The jury awarded her $1,750,000 plus a new motor home. The company actually changed their manuals on the basis of this suit just in case there were any other complete morons around.