A frequently asked question: Does my doctor have to testify? Answer: It Depends. Great what good does that do? Well to begin with this is a hotly debated topic as many doctors refuse to get involved in any type of litigation even if it will benefit their own patient. Doctors are frequently advised by risk management not to testify on behalf of one of their patients if the testimony might be harmful to another doctor. Should a doctor that has vital information concerning a patient’s injuries refuse to assist his patient in litigation? Should a doctor refuse to provide opinions as to whether his patient’s current condition was caused by negligent care by a previous doctor? These and other questions are frequently asked of us and debated by doctors, lawyers and medical boards.
If a doctor refuses to testify concerning the cause of a patient’s injuries and whether the injuries are permanent, his patient suffers as the value of the patient’s claim will be impacted or possibly destroyed. Medical evidence is required to prove in a court of law the “causal relationship” between an event and an injury. In addition, the implication of the doctor remaining silent is that if he felt the injury was related to a negligent act (auto collision, prior medical treatment, etc.) he would speak up and by his silence he is saying to his patient and the other side that the injury was not due to negligence.
Unfortunately, all too often patients are denied fair compensation because their doctors are told not to testify or if they are allowed to testify, they are cautioned not to say anything that could harm another doctor even if it is the truth. This ongoing conspiracy of silence creates problems for patients and creates tension between the doctors and their own patients. Frequently, the doctor will tell the patient one thing in the examining room and when asked by the lawyer to write a report or testify he will say no or that “legal has told me I can’t get involved.”
So what is the solution? The American Medical Association Ethical Guidelines provide that doctors have an obligation to assist in the administration of justice as it relates to their patients. Ethical Rule 9.07 Medical Testimony: Provides, in relevant part … in legal … proceedings, medical evidence is critical. As professionals, physicians have an obligation to assist. When a legal claim involves a patient the doctor has treated he must hold the patient’s interests paramount, including maintaining confidentiality. Physicians who serve as fact witnesses must deliver honest testimony. When treating physicians are called upon to testify in matters that could adversely impact their patients’ medical interests, they should decline to testify unless the patient consents or unless ordered to do so. If a doctor is called upon to give expert testimony he should be qualified to do so and should be able to testify honestly but frequently is told not to get involved if the matter involves providing standard of care opinions that could be viewed as critical of another doctor.
The policy at many hospitals is to discourage or outright preclude doctors from testifying as expert witnesses for a patient in a medical negligence action. However, the same discouragement does not seem to apply when it comes to a doctor being asked to testify on behalf of another doctor. The desire to achieve justice is often silenced by the desire to protect other doctors. There are those courageous doctors that are willing to speak the truth even if it means saying one of their colleagues was negligent but the pressure against speaking the truth is so overwhelming that many qualified doctors are scared away from getting involved. To those courageous doctors that are willing to speak the truth, I say don’t give up speaking the truth as we all depend upon you. You make a difference and you assist trial lawyers in their battle to prove when injuries were due to negligence and to protect and help make healthcare safer and to achieve justice for the injured.