I read with both interest and disappointment Dr. Andrew J. Meltzer’s guest editorial regarding medical malpractice published in the October issue of Vascular Specialist. He unfortunately chose the often traveled, but dead-end road of blaming the legal system for the current state of the medical malpractice system. This approach neglects the basic tenets of medical malpractice law.
To file a medical malpractice lawsuit, an attorney must show that the defendant physician had a physician-patient relationship with the patient, violated the standard of care, that the violation was responsible for the damages, and that the plaintiff did, in fact, suffer damages. The critical component of these requirements, in almost all cases, is the testimony of an expert witness who establishes the violation of the standard of care. This testimony is provided by a physician, not an attorney. Yes, one of our “colleagues.”
If there is no expert, as a matter of law, the case must fail. Do you really believe attorneys can determine whether the standard of care has been violated? They rely on physicians. It is true that attorneys may shop around for a physician who will support their case, but, like it or not, that is their job.
An attorney who has an injured client, and is informed by an appropriately credentialed physician that the injury was the result of negligence by the treating physician, must either file a lawsuit or explain why they are not filing the suit and suggest the client seek another legal opinion. He/ she cannot tell the client that there is no case. To do so would constitute legal malpractice.
For many years, I have encouraged my colleagues to report marginal testimony to the appropriate authorities or societies. However, to my disappointment, this is rarely done. I have suggested that deposition testimony be presented as part of the program of the national society meetings but have been told that to “shame” these doctors would be inappropriate. I disagree. A physician should be willing to defend his/her testimony to their colleagues, or perhaps should not testify.
Do not blame the legal system for the present state of medical malpractice. Physicians need only look in the mirror to find the real source of the problem.
Unfortunately, Dr. Meltzer, you have no case.
O. William Brown, MD, is a professor of surgery at Oakland University/William Beaumont School of Medicine, Auburn Hills, Michigan, and an adjunct professor of law at Michigan State University College of Laws, East Lansing, Michigan.