Dr. P, 45, was a family physician with a suburban practice in the Northeast. He saw a variety of patients but referred many cases that he felt he had neither the time nor experience to handle. One of them, which involved an infected wound, entangled him in a malpractice suit.
The patient, Ms. D, was a 47-year-old woman who had undergone a hysterectomy to treat excessive bleeding caused by fibroids. The ob/gyn who performed the surgery thought it prudent to remove her appendix at the same time.
Apparently making a rapid recovery, she was discharged from the hospital just four days after the operation. However, four days later Ms. D was in the surgeon’s office for redness, swelling, and a serous discharge from the incision. The surgeon re-admitted her with a wound infection. When a CT scan showed fluid collection just outside the deep fascia, he drained the fluid and left the wound open for further drainage.
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A week later Ms. D was discharged again, with arrangements for a home-health nurse to clean the wound and change dressings daily. This continued for a week, after which she visited Dr. P’s office to have the wound checked. Because of her good progress, he reduced the dressing changes to every other day. But four days into this protocol, Ms. D observed some green drainage on her dressing and returned to Dr. P’s office.
He examined the wound again and, noting the fresh granulation and healing base, told her he thought the discharge was a wound colonization, possibly Pseudomonas. She then volunteered that a culture in the hospital had shown Pseudomonas. (But her information was only partly true: In fact, the culture had been heavily Klebsiella with a few Pseudomonas organisms.)
On hearing this news, Dr. P increased Ms. D’s cephalosporin from 250 mg t.i.d. to 500 mg t.i.d. and mentioned that the surgeon might want to change the antibiotics because Pseudomonas was not sensitive to cephalosporin.
Ms. D —and her lawyer in the subsequent lawsuit—took this comment to mean that she had been receiving the wrong antibiotic. Once home, she called the surgeon and demanded to see an “infection specialist.” Alarmed, he sent her for another abdominal CT scan and ordered an immediate infectious disease (ID) consult.
The ID specialist ordered gentamicin 250 mg IV daily for a week. Reassuring Ms. D that the Pseudomonas infection was being treated, he went on vacation, leaving a colleague to cover his patients. The gentamicin was administered as ordered, and the wound appeared to heal satisfactorily.
Ms. D was discharged after the week of treatment, but her balance deteriorated so badly that soon she could not walk. Among the common side effects of gentamicin are ear disorders, such as hearing loss or ringing, dizziness, clumsiness, or unsteadiness. Further studies showed permanent damage to the vestibular system bilaterally. Attempts at rehabilitation failed, and Ms. D experienced continuing inability to walk without assistance, read without difficulty, or drive a car.
With her expenses mounting, she consulted a plaintiff’s lawyer and sued the two ID specialists. Dr. P was not named in the lawsuit, but he was called as a witness.
A year passed before Dr. P gave his deposition. The plaintiff’s lawyer had issued a subpoena earlier, but Dr. P knew that a lawyer’s subpoena does not carry the same authority as a judge’s. He asked to be rescheduled, and the lawyer accommodated his request.
Although Dr. P believed that the original ID specialist was responsible for dragging him into the lawsuit, he was determined to remain a neutral fact witness. He testified about each of Ms. D’s visits, reconstructing them from his chart entries. When asked for his opinion on a technical issue, such as the proper way to monitor patients taking gentamicin, which was the crux of the suit, he answered: “That is not in my area of expertise.” Dr. P thus avoided being conscripted by either side to promote its cause.
During the trial, the plaintiff’s lawyer drew a careful distinction between wound infection and wound contamination. He argued that the overgrowth of Pseudomonas did not require treatment with gentamicin at all, let alone its unmonitored administration by a reckless ID specialist who then left on vacation.
The jury found that specialist liable and awarded $5 million to the patient. But it could not decide on a verdict for the second specialist, who covered during the vacation. That doctor argued that he had relied on his colleague to set up an appropriate treatment plan to follow.
The judge declared a hung jury and set a new trial for the second specialist alone. This time, the jury accepted his argument and allowed him to walk.
Legal background
Attorneys love power, including issuing subpoenas for depositions as “officers of the court.” But depositions are much less formal than proceedings at which a judge presides. If you ask the attorneys to reschedule a deposition they are likely to accommodate you, especially if you are a fact witness.
Protecting yourself
The greater danger for a medical fact witness is testifying beyond what is necessary, desirable, or appropriate, considering that experts have already been hired to testify on the technical issues under dispute. In this case, Dr. P did well to confine himself to the factual material and leave the wrangling to the experts.
His testimony as to his treatment in this case was valuable to both sides. Jurors viewed him as an independent but knowledgeable authority. But it can be very difficult to maintain that factual role when the lawyers try to seduce, bully, and manipulate a treating clinician into a technical expert for their side. Despite the difficulties, Dr. P retained his independence—and minimized his time on the witness stand—by testifying only to the facts and avoiding taking sides. This is not to say that expert witnesses don’t have an important function in malpractice litigation. They do, but factual medical witnesses should play it straight down the middle, as Dr. P did.
Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.
