From the Operating Room to the Courtroom

Note: These suggestions and recommendations are not intended to substitute for, or compete with, advice you receive from retained legal counsel. Many surgeons, however, provide testimony in a variety of circumstances where their surgical care is not initially called into question and where they may testify without benefit of counsel. In today’s litigious culture, it is incumbent on every surgeon to have a basic understanding of testimony guidelines. In any case where you are providing testimony, consult a risk management or legal resource if you have unresolved questions.

When surgeons hear from attorneys, they are understandably concerned and often confused about the underlying reasons for the contact, the nature of their obligation to either discuss a patient’s case or maintain confidentiality, and the potential repercussions of the attorney’s inquiry. You may be contacted about your care of a patient as it relates to a criminal case, such as injuries sustained by the victim of an assault. You may be one of a team of providers in the care of a patient who had an unexpected bad outcome and your role may or may not be peripheral to the case. You may be a provider of subsequent treatment for a patient who arrived nearly dead at your doorstep and it seems unlikely that your care could be the target for possible litigation. Or you may be contacted because an attorney has searched the literature and the Web and identified you as a potential expert witness for a pending case. 

Case 1: Testifying in a criminal court proceeding

On a busy Monday with a full schedule in the operating room, a neurosurgeon practicing at a tertiary care teaching facility received a subpoena to testify in a criminal trial against the drunk driver who crashed into his patient’s car. The surgeon set the subpoena aside in a pile of reading. Many weeks later and two days before the trial was to start, he was contacted by the prosecuting attorney, now angered by the failure to respond to the subpoena, for pre-trial preparation and scheduling of his testimony. The surgeon, adopting a conciliatory stance, cancelled scheduled surgeries for the testimony date and made every effort to be cooperative. At trial, the defendant’s attorney, hoping to limit his client’s liability exposure, initiated a line of questioning about the care provided by the Emergency Department staff at the small community hospital receiving the patient, prior to transfer to the tertiary care facility. Still in his cooperative and helpful mindset, the surgeon tried to be as helpful as possible in answering questions about the patient’s first responder care, without reviewing the transfer medical record. Too late, he recognized that some of the testimony he offered could be considered unjustifiably critical of the community hospital care, and that his criticism might not be supported by the medical records.

• As a treating medical provider, you are legally obligated to discuss, with appropriate authorization from the     patient, your evaluation and treatment: what you saw, what you did, why you  did it, and what the outcome was. In this role, you can be compelled to testify as a fact witness at a deposition and/or in the courtroom.  If you respond to a subpoena in a timely manner, attorneys will usually work with you to minimize disruption of your     schedule.
• As a fact witness you are not required to render opinions about the quality or efficacy of other providers’ care or the patient’s prior history, both of which would require you to review  documents that may not be available to you and/or were not a part of your care. 
• You are also not obliged to sort out complex issues of causation, especially those extending prior to or after your treatment, such as an assessment of the role of multiple injuries over a decade, only one of which involved your care. 
• You do not have to play the role of primary medical expert for the case simply because you treated the     patient.

Case 2: Testifying in  Workers Compensation and Personal Injury Cases

An orthopedic surgeon was asked to testify on behalf of her patient in a job injury case. The surgeon believed her patient had been treated harshly by his employer and wanted to be as supportive as possible. In addition to describing her evaluation and treatment of the relatively minor primary lumbar spine complaints, she also detailed the patient’s seemingly unrelated medical problems, explaining why the work accident might have caused them as well. This testimony helped the patient win his lawsuit against the employer. Within months, the patient sued the surgeon for medical malpractice. The legal complaint alleged that, because the surgeon understood and had explained a rather obscure causal mechanism, she should have recognized the problem sooner, informed her other healthcare providers and saved the patient many months of suffering and loss of income.

• In Workers Compensation cases you do not need a separate patient authorization to discuss the case, as long as you have verification that the patient has filed a Workers Compensation claim. Under HIPAA’s Privacy Rule, information and testimony given by a healthcare provider required as part of a lawful process, including workers’ compensation proceedings, is specifically exempted from HIPAA restrictions.
• Workers Compensation and Personal Injury claims can create a conflict for the medical care provider. Where does your role as advocate for your patient begin and end? Exercise caution, for your testimony about care you or others provided or failed to provide may resurface in a subsequent malpractice lawsuit. In a rare case, as in Case 2 above, it may be difficult to balance your interests against those of your patient. Focusing on a limited, fact and medical record-based review is the reasonable course of action. If pre-testimony conversations with the patient’s attorney tell you that you cannot, in good conscience, provide the level of support they are looking for, be forthright about your perspective before you assume the witness stand.