A QUARTER OF A CENTURY IN THE WITNESS BOX: A SURVIVOR'S PERSPECTIVE
I started practice as a surgical medico-legal opinion giver in 1973. Subsequently, I became increasingly involved in medico-legal work - particularly in personal injury work but to a much lesser extent in medical malpractice work. Over the years, I have been involved in providing advice in medico-legal matters - from a surgical perspective for - the Australian Medical Association, the Victorian WorkCover Authority, etc. Initially, it was quite common for me to have to attend court to give evidence as a result of a medico-legal report. Over recent years, the need for attending court has been diminishing quite rapidly. Some four years ago, I would go to court on about at least a weekly basis. Nowadays, it may be once every three or four months. This should set the scene for me as a survivor after twenty five or so years.
Over this quarter of a century, some interesting cases have come my way.
My first meeting with our scientific chairman, John Phillips, was when he and his junior - Andrew Kirkham (now QC) - came to my rooms to discuss my possible involvement in the Lindy Chamberlain case. They were concerned from a surgical and anatomical perspective about injuries to the head and neck caused by a dingo bite.
At the time, I lectured on the anatomy of the head and neck at Melbourne University. I declined to be involved, suggesting instead Professor Keith Bradley - a surgeon anatomist far more competent than me. Shortly after entering the witness box in Darwin, Professor Bradley was asked about his experience of dingo bite injuries to the head and neck - "I have none" - "Thank you, Professor Bradley - goodbye".
A few years back, I saw a woman who had been claiming workers' compensation for a sore right hand. I had seen her on three separate occasions before the court hearing. At no time could I find any physical abnormality with her right hand or right arm. Other people had seen her and had found her right hand to be swollen, shiny and bluish. She was in court when I came to give my evidence. Even from the witness box I could see that her hand was swollen, shiny and bluish. Everybody else, including the judge, could see this.
At about this stage, Perry Mason, the television and film lawyer in dramatic court cases, was widely watched. I had been watching him. With him in mind, I asked if I could approach the bench and then asked the judge if the patient could be requested to remove her jumper. This was done and beneath the jumper there was on her upper arm a constricting tourniquet type device. This was the obvious cause of the disfigurement of her right hand. The case was adjourned and the patient apparently immediately disappeared.
Those of us in the medical profession are reluctant to admit that there are mavericks amongst us - that is, that there are people in our profession who will give evidence which is at odds with mainstream medical practice. When pressed, we have to admit that there are such people, albeit that they are rare. The College of Surgeons has recently set up a medical (surgical) malpractice expert witness working party to set down criteria for the provision of expert witnesses in medical malpractice matters. I am on that committee in my capacity as Chair of the RACS Medico-Legal Section. As a result of this, I was recently telephoned by Four Corners - the ABC current affairs programme - and asked about medical mavericks. I said that I had to admit that there are a small number of medical mavericks. "Who?" they said. I declined to go further for obvious reasons.
The RACS committee has not yet concluded its deliberations. What is likely to be decided is that the various craft groups within the RACS will be responsible for providing names of surgeons who are at the leading edge of their specialty, sub-specialty or sub-sub-specialty. These will probably not be people who are normally involved in medico-legal report giving. These will be people to whom a surgeon might take himself in order to have his aorta replaced, etc. The RACS will attempt to apply pressure on such people to become a part of the medico-legal on the basis that they will rarely be used and it won't significantly affect their clinical practice.
I am concerned that there is here a potential to divide the surgical fellowship up into A and B class surgeons. Those on the list will be "A" class and those not will be "B" class. This in turn has a destructive potential and will not be in the best interests of the community or medicine. I don't see the legal profession readily wanting to give up their privilege of choosing their favourite medical witness.
The Australian Orthopaedic Association - at least the Victorian section of it - is setting up a somewhat modified plan. They are looking at a range of situations in which the case notes in question are reviewed by a committee of orthopaedic surgeons and other lay people. This committee will then choose two or three of the most appropriate cutting edge, or should I say leading edge, orthopaedic specialists from whom an opinion can be obtained.
But medicine and law is a dangerous liaison. The Australian Orthopaedic Association council of perfection may be in the best interests of finding the truth, the whole truth and nothing but it, but it won't necessarily be the most assured way of a lawyer winning his case. No matter how hard we - the surgeons - try to make lists not discoverable, the legal profession will get hold of the lists and misuse them. After all, medicine and the law is a dangerous liaison.
The community in general seems to be wanting organised medicine to be more accommodating in providing plaintiff lawyers with balanced opinions about suspected medical malpractice events. On the one hand I agree that the community has a reasonable expectation of us - on the other hand, there is huge potential for misuse of such lists.
THE EVOLUTION OF MEDICAL PRACTICE CAUSED BY THE LAW
In my quarter of a century in the witness box, I have seen marked changes in medical practice caused by the legal profession. When I started my medical training - I grew up in a time when the doctor knew best - surgeons' opinions were not questioned. I was never taught communication skills as a medical student. Some of my surgical mentors were totally non-communicative. They were good at what they did - they were God - they made the law.
It is a humbling experience to be cross-examined in a witness box by a person who is not a medical practitioner. It is a humbling experience to have one's qualifications questioned - to have one's experience belittled - to have one's competence questioned. Fortunately, I have not been in that situation as a medical malpractice defendant yet. However, I have obviously been in that situation in medico-legal matters. Doctors are very sensitive to being questioned. Our egos are not used to such legal rough treatment. Over recent years a number of very competent, highly respected medicos have simply stopped practice as a result of treatment that they have received in medical malpractice matters.
Medicos are now having to organise more tests, more investigations, etc., to cover the remote possibility that there may be something found or something turned up by the test. This is particularly so with some of the more expensive investigations such as MRI scans. Unfortunately, such investigations are often very sensitive and bring to light abnormalities which may be irrelevant, although the knowledge of having them might be very distressing and disturbing to the patient.
All of us will develop dehydrated discs in the spine after the age of about 25. These will appear on an MRI scan as "black disc". Despite explanations - a lot of people won't accept that this is a normal ageing process - it is an abnormality after all. Hence, we can cause a lot of anxiety by the simple performance of these investigations. The investigations are brought upon us by the law - medicine and law is a dangerous liaison.
THE AMERICAN MEDICAL ASSOCIATION GUIDES
In personal injury litigation and more recently in medical malpractice litigation - in most jurisdictions in Australia, the American Medical Association Guides have become the accepted assessment tool.
These Guides neatly divide up the human body using the concept of whole person impairment. It is assumed that a 0% whole person impairment is someone who is completely well, yet a person who has 100% whole person impairment is someone who is effectively dead. Someone who has 50% whole person impairment is either half dead or half alive, depending on your point of view - whether you are a pessimist or an optimist. These Guides produce a nice set of figures which are dearly loved by insurance clerks. In general terms, the patient (known as the client) is allocated so many dollars for each percentage point impairment. Achieving a certain value or level, according to these Guides, will allow the client to progress with litigation or otherwise.
Impairment is effectively the loss of an anatomical part. Loss of the left little finger is a 5% whole person impairment, using the American Medical Association Guides 4th Edition. This is the same whether the owner of the left little finger loss is a concert pianist or a labourer. Impairment does not take into account the use to which the patient might put something. What we should be measuring is in fact disability or handicap - in other words, how the impairment really affects us.
A very common area is somebody with a bad back. To a labourer - a bad back can be catastrophic. To someone like me - a sedentary worker - it can reasonably be accommodated and just be a nuisance. Nonetheless, both of us - the labourer and myself - would attract the same impairment value even though the disability and handicap would be totally different.
Assessing disability and handicap is much more difficult than assessing impairment alone, yet we - the community that accepts the American Medical Association Guides - have accepted that assessing impairment, even though it is inappropriate, should be done.
This problem is now being noted in some jurisdictions - particularly in relation to the recent tort law reform. As a result of the use of the AMA Guides, some people are being denied compensation even for fairly severe injuries because of reliance on the AMA Guides. Even after some horrendous injuries, people may make a good recovery and have an almost 0% impairment under the Guides and hence be denied appropriate recourse to compensation. Although I think that the fault here - that is, the fault of acceptance of the AMA Guides - is a legislative fault the dangerous liaison between the medical and the legal fraternity appears to have allowed it to happen.
Influencing the Medical Witness
When I first started medico legal work, I was sometimes sent a referring letter from a solicitor arranging for an appointment but providing me with medico-legal reports already in their possession from eminent members of my profession. Remember, this was 25 years ago when I was young and unknown. It was not for some time until I realised that the reports I was being given were provided to try to persuade me, as a younger member of the profession - to come to the same opinion as the older and more respected members of the profession. I believe lawyers refer to this as a "bellwether situation" - one sheep - the bellwether - leads the other sheep to follow.
I must hasten to add, for the benefit of those of you who are not involved in medico-legal work, that this activity does not occur now.
Trial by Ambush
When I first started my quarter of a century in the witness box, trial by ambush was a permissible legal tactic. Relevant evidence appeared to have been withheld until it was dropped on the medical witness in the courtroom for the first time. I suspect that this was probably done to unsettle the witness and watch him wriggle and squirm. I now feel that we have a much more enlightened system of exchange of reports in a pre-trial basis.
But I still have some reservations. I sometimes receive letters from solicitors - particularly in medical malpractice - asking me to "peruse the file and telephone so-and-so before going to the trouble of writing the report". I suspect that this is in order to ascertain whether or not my opinion would be favourable to the solicitor's case. If my opinion was not favourable, then I would not generate a report and my opinion would therefore not be available for exchange. I do keep notes of any conversations that I have with the legal profession. I find myself teaching my colleagues about relationships with the legal profession and I strongly advocate that they, too, should keep notes. Medicine and law is a dangerous liaison.
I have always found surveillance videotapes distasteful. I appreciate that it is sometimes necessary for a sleuth to follow a client around for a few days but I have some uncomfortable feelings about that. It seems to me to be an invasion of privacy.
On one occasion, I saw a patient for an insurance company in relation to a back injury claim. The patient told me that his back was such that he couldn't do any work - he couldn't move his back. Clinical examination revealed fairly grimy, calloused hands and fairly well-developed muscles. These findings were not consistent with the history that the patient had given me. When I was called to court to give evidence subsequently, I was shown a surveillance videotape of the patient. It would appear that a member of the surveillance team had contacted the patient and told him that he was anxious to buy his car for an inflated price. The car was duly inspected by the disguised sleuth and by the patient. A patch of oil was pointed out underneath the car and the patient demonstrated a full range of movement of his back while he apparently claimed that his car was not leaking oil. This was videotaped and shown in court. The patient got up in court, having seen this, and yelled something to the effect that "if that is justice, then I'll have nothing to do with it...". I believe that that was the end of the case but there was quite a lot of trouble about the methodology used.
The use of surveillance material also bothers me in that the potential for mistakes is quite great. Quite often, surveillance material is shot by the sleuth from some distance such that it is not possible to recognise the subject of the material. It is tempting for medical witnesses to assume that the subject of the videotape is the patient. This is an unwise assumption to be made without question. There have been a number of cases in which the surveillance tape is in fact the barrister involved or other people, not the person that it was thought to be. There are well-known stories about identical twins being videotaped and miscarriages of justice potentially arising as a result.
THE DANGERS OF MEDICO-LEGAL PRACTICE
Medico-legal practice is not the safest branch of medicine in which to practice.
Emotions run high when people feel that their future is at stake. The insurance companies have elaborate security systems in place. Their reception desks have bullet-proof glass - there is a need to sign in and sign out and wear identifying tags at all times within an insurance company. Doctors can't do this - we have to sit in the room with the patient usually without anybody else being present. Doctors need to try to develop rapport with the patient. The patient may be very annoyed at having to have their story gone over - particularly if the patient is psychiatrically unwell - yet the story must be gone over in order that the assessing doctor can readily understand the situation at first hand.
About ten years ago, I was phoned by a general practitioner (with whom I had previously never communicated), to tell me that a patient I was to see that day had told her that he was going to kill me. I had previously seen the patient once and had concluded in my report that the patient needed to have assessment for a psychological or psychiatric problem. The patient also did have a physical problem. I telephoned the insurance company after the phone call from the local doctor, and said that I would see the patient for them as agreed but that I would like to have some security for me. The local constabulary descended on my medical centre. There were police everywhere. The patient didn't arrive. Some weeks later, the patient suicided. About a year later, a complaint was lodged against me by the patient's relatives, stating that I had failed to provide a glass of water at the time of the consultation which didn't take place. The patient had obviously not communicated with his relatives.
Death threats are rare, but they do occur. I don't publicise my home address, though being in clinical practice I do need to provide my home number fairly freely. Mr Brown used to call me on a fairly regular basis at about 3.00 in the morning to say "you bastard - your report caused me to lose my benefits - your report persuaded everybody else". He stopped ringing because one night I was out when he phoned. On of the children answered the phone and told him that his own phone number had come up on the "dial" of our phone and that my son had copied it down.
For years, through the AMA, I have been trying to persuade the Victorian WorkCover Authority to appreciate that medico-legal practice is dangerous - but until recently, they have done nothing about it on the grounds that any advice they gave to independent medical examiners is discoverable and could therefore be held against them. Recently, and I suspect that this is the result of the VWA perceiving some legal risk to themselves....
THE CORONER'S COURT
One interface of the law and medicine in the witness box about which I feel particularly strongly is that of Coroner's Court appearances. In this jurisdiction, quite junior hospital doctors can be under the spotlight in the media in matters to which they may only have a passing involvement with the deceased patient. They receive adverse publicity. If they are subsequently found to be innocent, then this will not be reported in the media and irreparable damage will be done to them at the very commencement of their career.
I feel very strongly that the Coroner's Court hearings should be closed to publicity until a judgement has been made, at which stage it is quite reasonable, in my opinion, for that judgement to be publicised. I believe that my views are widely held within the broader medical profession.
Appreciating that this audience is influential, I thought it would be worthwhile for me to discuss, from a survivor's perspective, what might happen in the future.
The Single (Court-Appointed) Expert
The College of Surgeons has considered the idea of a court-appointed expert - a person highly respected in the profession - who would be acceptable to both sides of any malpractice argument.
This is a very attractive concept - particularly as it would probably lead to a dramatic reduction of time in court - indeed the matter should settle without the need to go to court. However, even to surgeons the adversarial system has the benefit of drawing out different perspectives - new ideas which the traditional surgeon - the court-appointed expert - might not have considered.
A further problem with the single (court-appointed) expert is that such a surgeon - although expert as a surgeon - admired by all as a surgeon - might not perform well in the witness box. Surgeons find the process of cross-examination uncomfortable.
The Quasi-Judicial Appointment
The Australian Medical Association also has a committee looking at the problems of expert evidence in medical malpractice litigation. I am not on that committee but because of my involvement with the AMA in other areas, I am being "kept in the loop".
The AMA is enthusiastic about the concept of having a medical practitioner retained by the court to explain medical matters to the judge. Such a person would have no formal powers, no ability to question witnesses and no ability to give any opinion. The AMA would like such a medical practitioner to be - in other words, that person would probably not be a surgeon even if the case involved a complex surgical problem. Personally, I see substantial dangers in such a situation. Sometimes an expert needs to have been in a similar clinical predicament to be able to fully understand and appreciate the issues in question.
As I have indicated so far, the law influences the practice of medicine. I would like to think that medicine can influence the practice of law. Certainly, the trust that the patient - a client - has in his lawyer can be used to facilitate medical treatment. It is widely accepted that a good deal of the success of medical treatment depends upon the rapport of a patient with his doctor - the trust that the patient has in his treating medical practitioner. It follows that harming that rapport or destroying or undermining that trust can spoil the chance for future successful treatment.
Support of therapy by the legal profession - particularly in non-physical matters - has the potential to be substantially beneficial to mutual clients. I would like to think that the legal profession, despite being in a dangerous liaison with the medical profession, would take this on board.
Copyright 2005. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at firstname.lastname@example.org