During the pandemic, like many healthcare professionals, I sought additional income through chart review work. This led to an unexpected role as a defendant's expert witness in a medical-legal case involving a patient who claimed to have developed an autoimmune condition following a fall. While I cannot divulge specific details, this experience profoundly changed my perspective on medical practice.
And it left both positive and negative consequences for my career.
The case appeared straightforward at first glance—medical literature clearly indicates no established link between trauma and the autoimmune condition in question. However, what unfolded in the courtroom was an eye-opening lesson in how medical facts can be reframed and manipulated in legal proceedings. The plaintiff's legal team secured testimony from a highly credentialed physician expert at a prestigious university, and they made assertions that, while scientifically questionable, carried weight due to the expert's impressive credentials.
It served to create a halo effect where the authority of the individual overshadowed the underlying facts. They even cited a 40-year-old article suggesting a tenuous connection between trauma and autoimmune conditions, using the “cannot exclude” argument to plant seeds of doubt.
How My Expert Witness Work Changed My Mindset
This experience led to several significant changes in my medical practice. First, I became acutely aware that every patient encounter, no matter how routine, could potentially become a legal matter. Simple oversights like copied-and-pasted text in electronic health records or incomplete documentation of off-label medication discussions could be weaponized in legal proceedings. The opposing counsel's attempts to discredit testimony by questioning my recall of basic details—such as referring to a physician's gender or their practice locations—highlighted the importance of meticulous documentation. The case was ultimately resolved through a settlement.
The experience also revealed the darker side of medical-legal proceedings. I witnessed how lawyers could twist routine medical decision-making into suggestions of impropriety, such as questioning diagnostic codes used for billing purposes or scrutinizing the documentation of informed consent for off-label prescriptions. I had been a solo rheumatologist in private practice for several years, frequently encountering ambiguous diagnostic scenarios that could persist for extended periods. The complexity of rheumatology often results in unclear diagnoses that can persist for extended periods.
This experience in the courtroom led me to implement several defensive practices: seeing fewer patients to ensure more thorough documentation, increasing non-clinical work, and being more cautious with complex cases that might benefit from specialist referral.
Perhaps most importantly, it highlighted the disconnect between the practice of medicine and its legal interpretation. While medical decisions are often made based on clinical judgment and experience, legal proceedings can reduce these nuanced decisions to black-and-white scenarios, where documentation becomes more important than the actual care provided.
More information here:
How Being an Expert Witness Can Make You a Better Doctor
How to Actually Get Paid as an Expert Witness (or Any Other Side Gig)
The Complexities of Modern Medical Practice: Lessons from the Courtroom
In the quiet aftermath of my courtroom experience, I found myself fundamentally reassessing my approach to medical practice. What began as routine documentation and standard patient care suddenly appeared fraught with potential legal implications. The seemingly straightforward aspects of medicine had transformed into a complex web of legal considerations, forcing me to navigate an increasingly challenging landscape.
Every day in clinical practice now carries new weight. Consider the simple act of ordering diagnostic tests—what once was a straightforward clinical decision has become an exercise in meticulous documentation. During my testimony, I watched in dismay as opposing counsel attempted to transform routine software limitations into suggestions of fraudulent billing practices. Such experiences have left an indelible mark on how I approach even the most basic aspects of patient care.
The practice of rheumatology, with its frequent reliance on off-label medications, has become particularly challenging. These medications, often crucial for patient care, now require exhaustive documentation of patient discussions. Every potential side effect, no matter how rare, must be detailed and acknowledged. The specter of future litigation looms over each prescription, leading to lengthy conversations that must be captured in precise detail within the medical record. However, reduced insurance payments make it difficult to balance the quality time spent with patients and the necessary documentation.
Perhaps most troubling is the documentation paradox we face as physicians. The conventional wisdom to “document everything” has proven to be a double-edged sword. Too much documentation raises suspicions of defensive medicine, while too little suggests negligence. Even perfect documentation can be dissected and scrutinized, with timestamps and chronology becoming crucial elements in legal proceedings. I've watched colleagues struggle with this balance, their patient notes growing longer while their patient interactions get shorter.
The impact on clinical practice has been profound. I find myself increasingly cautious, sometimes referring cases I would have confidently managed in the past. This defensive approach extends beyond documentation to the very nature of patient care. Complex cases that once represented interesting clinical challenges now appear as potential legal liabilities. The “safe zones” of medicine have become increasingly appealing, though this shift often comes at the cost of comprehensive patient care.
The financial implications of these changes ripple through the healthcare system. Defensive medicine, with its additional tests and specialist referrals, drives up costs while potentially delaying effective treatment. The administrative burden of enhanced documentation requirements reduces the time available for direct patient care. These challenges have led me to increase my non-clinical work, finding a safer harbor in administrative roles while maintaining a more selective clinical practice.
Still, I remain cautiously optimistic about medicine.
More information here:
Don’t Carry the Weight of the Past or Worry About What the Future Might Bring; Stay in the Current
Merging Financial Responsibility and Environmental Sustainability
Moving Ahead with My Career
Looking forward, I see both challenges and opportunities. While the practice of medicine has become more complex, these experiences have also led to more thorough patient communications and more carefully considered treatment plans. The key lies in finding balance—maintaining high-quality patient care while protecting oneself legally, preserving the doctor-patient relationship while acknowledging the realities of modern medical practice.
As I reflect on these changes, I realize that medicine is evolving into something quite different from what I initially envisioned. I initially anticipated that patients would appreciate the care they receive from their doctors and that lawsuits would arise only in cases of gross negligence. However, I observe that there is a lack of respect toward physicians, indicating that financial motivations predominantly drive societal interactions.
Yet within these challenges lies the opportunity to develop better systems; more effective communication strategies; and, ultimately, safer patient care. The goal remains the same—to provide optimal care for our patients—but the path to achieving this goal now requires careful navigation through an increasingly complex medicolegal landscape.
This evolution in medical practice, while sometimes frustrating, represents a necessary adaptation to modern healthcare realities. As physicians, we must learn to balance the art of medicine with the science of documentation, the need for efficiency with the demands of that thorough documentation, and the desire to help with the need to protect ourselves professionally.
What do you think? Do you find yourself practicing differently because of a potential legal threat? Has that made you a better physician?
I have avoided certain jobs since I’d have to get private malpractice and would be jeopardizing (theoretically) my family’s finances should there be an allegation, and now knowing I am imperfect (and too tired/ busy to aim for perfection) I have retired. Your article makes me long for the UK system where a panel of educated/ experienced judges decides malpractice cases. Sure we need to compensate damaged people and punish/ stop bad docs, but the amount lawyers get for questionable work is wasteful. The neonatal injury funds some states have address this better than contingency lawsuits.
And look at govt. employees: I have moved several times in and married to the military. Looks like any citizen stepping up to be a presidential advisor is at risk of being hauled before congress immediately or in the next administration- I used to suggest ‘good’ folk like my husband and other military/ political folk we knew serve in DC but the pay would never provide an adequate legal retainer let alone travel fund should the opposing party start demanding you appear for questioning.
I feel like there’s a couple ways to approach this problem. 1. Is to practice overly defensive medicine, spent more time documenting, see less patients and all the harm that comes with these things. 2. Accept that there’s things we have little control over, do what’s best for patient medical care and your own sanity, and live with the consequences.
Your point about over documenting, lawyers twisting insignificant things, actual evidence being less important than credentials of the expert highlights the foolhardiness of trying to do number 1 imo. You could do everything as best as possible from a medico-legal standpoint and still get burned. Some patients/cases/legal scenarios are just grenades and someone will be the unlucky one who falls on it. I’m not going to spend my career worrying about it.
KP, I agree with you 100%. Follow the rules of your state medical/dental/veterinary or whatever board, stay current in your field, pay for your professional liability insurance, and don’t skip on opportunities to learn about risk management in your field. All that aside, do your best to provide quality care and communicate effectively with your patients, and do not get bogged down by the documentation. Defensive practice is a short path to burnout and to viewing your patients as adversaries.
3. Get out of EM and take up day-trading full time.
Ironic as I’m also an ED doc. But that sounds pretty lame and unfulfilling to me. Can’t say I love my job but work is work and the trade offs are generally worth it. And occasionally I get to do some cool stuff and feel like I make a difference. Most people don’t get to say that. My point with all this is you gotta find some balance that you can live with and be happy in. Similar to finances. You could get hit by a bus next week and you’ll regret stressing over such things. Medicine is hard and only getting harder in many ways. But finding meaning and equanimity with it is as much as personal question as a system question.
I hope that’s a joke.
https://www.whitecoatinvestor.com/dont-day-trade/
In a sense everything is somehow connected, so maybe the trauma is related to autoimmune conditions in the context of mindbody connections on the individual level. However, that doesn’t mean the docs should be sued and all this crap needs to build up in the medical legal system. It is a waste of time and resources for the most part these days anyway. The person who sues is probably fearful , mad, and wants somebody else to blame and the lawyers smell that and drag everybody into this shit. Finally the person gets paid a certain amount but his/her conditions would be unlikely to improve and the docs are burned out and similar scenarios will become more common.
One can practice defensive medicine and that surely would lead to burnout faster. The docs are afraid and constantly check about the documentation and worst case scenario and can’t focus on the patients, how could they build trust relationship and truly attend to the patients’ needs? Or the docs could screen out the patients and kick out those their gut feelings determine that could be potential legal trouble. Or the docs get into something that involves less and less patient care and surely that would help the current strenuous situations (fewer docs more patients and more work to cover). Another alternative is to switch to mindbody medicine/coaching and make the disclaimer suggestions/coaching only and cash only and don’t sue me since patients could go to the conventional system to get all the tests, treatments etc. while you only provide education and knowledge and the healing would be achieved by the patients themselves. If they don’t like the outcomes they could sue themselves.
Something came up with my attorney this week that seems relevant in light of this discussion…
Do you recommend putting your home and any accounts where it is possible in the name of a nonpracticing spouse?
Any other thoughts on estate planning as relates to the possibility of a malpractice case?
Ty to the community and Dr. Dahle-so grateful for your advice
No. You are far more likely to lose assets to your spouse than your patient. I calculate the risk of an EM doc having an above policy limits judgment at about 1/10,000 per year of practice. But 25% of docs get divorced.
Read this post: https://www.whitecoatinvestor.com/asset-protection/
and if you want to learn more, read my book on Asset Protection.
https://www.whitecoatinvestor.com/review-the-white-coat-investors-guide-to-asset-protection/
Tysm for your reply!
I think the reaction that the author has taken is similar to what most doctors feel after being sued. He is lucky that he has been able to glean from his experience without being a defendant. I have never been sued, but I have been called to be a percipient witness often enough to understand the courtroom. I agree with the author about his perceptions.
It is good for a doc to know that litigating attorneys use a variety of methods to win their cases, which include making the defendant doctors look bad (incompetent, greedy, uncaring, etc.). That is just a part of business for the profession.
In a related vein, I was informed by an attorney who should know, that at least one highly ranked law school back east offered drama/acting courses to their students considering a career in litigation. It is good to know what you are up against in the courtroom…
I wholeheartedly agree with the author and appreciate his insight. I am an emergency physician and unfortunately have been sued twice in a long career. Each time the process was egregious and it took everything I had to keep going. I could never understand the statement “it’s just the cost of doing business ” And as an emergency physician I have no control over the patients I see. There are no good solutions, but I find it immensely helpful to read that others feel the same way that I do about it. Thank you for sharing your experiences.