Don’t Doctors Just Stick Together?  How Do I Get Other Doctors to Testify Against My Doctor if it is a Clear Case of Negligence?

If you are asking this question, then you have probably suffered an injury as a result of medical care that you believe was negligent.  And you have probably decided that a lawsuit is the next step.  But how will you get your doctors (or any doctor) to testify against someone in their own profession?  

As a lawyer, these questions aren’t new to me.  In fact they are not new to any lawyer who handles medical negligence lawsuits. But these questions probably are new to the person who has just realized that a negligent doctor or nurse is the cause of their injury.  If the injury is permanent, and debilitating like RSD often is, the questions must be terrifying.  

The purpose of this short article is to provide a personal injury lawyer’s perspective on this issue: the issue of obtaining medical testimony in the context of a medical negligence case. Or, put in layman’s terms: “How do I get other doctors to testify against my doctor?”  

Let me make a few things clear at the outset: 

First, Medical Negligence cases are complicated. The medicine is complicated.  This creates two problems: first, a jury lost in the complexities of the medicine is more likely to side with the hospital.  Second, the complexities allow medical providers defenses.  Put plainly, the deck is stacked for the doctors and hospitals and against the person who has been injured. 

Second, RSD is complicated. Many doctors (and many lawyers) mistakenly see it as something mysterious, or view it as “syndrome” with no clear “cause” or inciting event – more akin to Chronic Fatigue Syndrome than anything they can “define”.  Even with doctors (and lawyers) with some experience with RSD, RSD can appear to be an “invisible injury” that is “difficult to prove” to an adjuster or jury. 

Finally, there is no way to “get” your doctors to testify against another doctor. As the patient, and as the Plaintiff in a lawsuit, you must avoid any attempt to “get” or “persuade” any witness (including your doctors) to do anything.  Any effort you make to “get” your doctor or any witness to do anything will be manipulated by the lawyers defending the case to make it appear that you are tampering with the witness.  Any discussions you have with a caregiver about your “case”, your lawsuit or your lawyer will likely be written down in your medical records. Any Defense lawyer reading a medical record that contains the Plaintiff discussing their case, lawsuit or lawyer will get a gleam in their eye. Defense lawyers know that a jury will be wary of a patient who talks about their lawsuit with their doctor when they “should” be talking about their injury.

So, what are you to do? For the reasons I have outlined above, you should not do anything.  Your lawyer should navigate this legal maze for you.  

However, that doesn’t mean you shouldn’t understand the process.  For that reason, the remainder of this article is written for the person who suffers from RSD – the patient and the client – so that they can understand the process their lawyer should follow in obtaining medical testimony to support their case.

But how will the lawyer go about this? 

There are several stages during a medical negligence lawsuit where your lawyer will need to obtain medical testimony in your case.Requirements For Medical Testimony Before The Lawsuit Is Filed:

Many states have special requirements for filing professional negligence (including medical negligence) lawsuits that are not required for Plaintiffs filing other types of injury suits. In Georgia, for example, a Plaintiff must, at the time of filing a medical negligence suit, attach a sworn Affidavit from a physician in the same field of medicine affirming that the physician has reviewed the Plaintiff’s case and can offer the opinion that the doctor or nurse at issue violated the standard of care for medical professionals generally.

Arizona has an “affidavit of merit” law. North Carolina does not require an Affidavit, but requires that the Plaintiff affirm in the lawsuit that a medical professional in the same profession has reviewed the Plaintiff’s claim and has determined it is meritorious. Many other states have similar requirements.

I have had doctors tell me, candidly, that they would not offer an Affidavit against a doctor practicing in the same community regardless of the circumstances. Most lawyers would probably agree this is the general rule: that the “code of silence” within the medical community does indeed exist.  However, in cases where the doctor’s negligence was significant, I have also had doctors provide an Affidavit against a doctor from the same state. 

In general, your lawyer may need to reach outside the immediate community – or even outside the state – in order to obtain a pre-suit Affidavit in order to bring a medical negligence lawsuit on your behalf. 

  1. The Need For The Medical Testimony Of An Expert During Litigation To Support That The Defendant Doctor Violated The Standard Of Care. 

All medical negligence cases (regardless of whether your state requires a pre-suit Affidavit) require that the Plaintiff put forth expert medical testimony during litigation that the doctor (or nurse) violated the standard of care.  Like the pre-suit requirement, most lawyers would agree that this expert will likely come from outside the community where the Defendant doctor practices.  

Again, this is a job for your lawyer, not for you. Even if you had the time and the inclination to attempt to research experts in the requisite field of medicine and contact their offices, they would probably not speak with you. The top expert in any given field who are willing to be involved in litigation will often only get involved in litigation if they are comfortable with the reputation and the experience of the lawyer on the case.  What this means is that no matter how hurt you are and no matter how poor a job your doctor did in caring for you, the best medical experts will not return your call. My best advice is this: find a top – notch lawyer and they will find a top – notch expert for your case.  

  1. The Need For Medical Testimony From Your Treating Doctors.

 
Up until now we have only been discussing the “proof of negligence” part of your lawsuit. However there is an equally important part of your suit: the “proof of damages” part.  

If you suffer from RSD it may have taken your doctors a while to diagnose it.  Many RSD sufferers may have started with an orthopedist or even a family doctor following a traumatic injury that may have seemed minor at the time.  If you developed RSD as a result of negligent medical care you may have had post-surgery visits with a neurologist or neurosurgeon. 

By the time you are diagnosed with RSD you are likely under the care of an Anesthesiologist / Pain Management doctor. You may also be under the care of a Physical Rehabilitation Medicine Doctor.  Over the course of your care you will likely be treated by Physical Therapists.  You may also followed by a Psychiatrist.  Frankly, the list of doctors an RSD sufferer may see before finally identifying a doctor familiar with RSD can seem endless. 

Once you are under a competent doctor’s care for treatment of your RSD your doctor may have identified a long list of treatment modalities including prescription medications, Stellate Ganglion Blocks, Ketamine or a trial of a Spinal Cord Stimulator or an Intrathecal Pain Pump.

Whatever the treatment you have received following your diagnosis of RSD it is likely to have involved several doctors and a long course of attempts at different treatment options. 

So, the question arises: how do you get these doctors to testify “against your” doctor?

Once again, “you” don’t. But not for the same reasons we discussed above. Most injured people involved in lawsuits find that their treating doctors are willing to offer testimony about the doctors’ treatment and about the patient’s injuries. This is often the case when the injured person has brought a medical malpractice case as well. 

The reason is this: your treating doctors are not testifying “against” your doctor.  Your treating doctors will often be in a different medical specialty than the Defendant-Doctor in your case.  For that reason they will not be asked to provide an opinion that your doctor was negligent or that your doctor violated the standard of care. That is not their role. Their role is simply to treat you. And any role they have in your litigation will simply be to provide testimony about the treatment they provide you, their diagnosis of your condition, and, often, their opinions regarding medical treatment you are likely to need in the future. 

CONCLUSION:

Medical testimony in RSD cases is always necessary. In any litigation involving a client who suffers from RSD the lawyer will need to be familiar with the best experts in the country in order to prove your injury to a jury (or adjuster for settlement) and to help the jury understand exactly what you suffer on a daily basis and what RSD has taken away from you – and what RSD has left you with.

Medical Negligence cases are no different. The best experts only work with the “best” lawyers – that is to say, lawyers whose reputation in their field gives the expert the confidence to sign on to work with them.  

In any litigation, if you suffer from RSD you need to find a lawyer who believes in your injury, who understands your injury, and who knows how to convey the full extent of your losses to a jury. Once you have done the work to pick the best lawyer, your job is to be the patient (and the client) and to leave the “lawyer-ing” to them. 

Nelson Tyrone 
TYRONE LAW FIRM

Have a question for Nelson Tyrone about this article or a related matter? You can visit his website or you can email him via nelson@tyronelaw.com

Nelson Tyrone is the principal of the Tyrone Law Firm in Atlanta, Georgia. He has obtained record verdicts and settlements in Georgia on behalf of clients suffering from RSD in 2009, 2010, 2011, and 2012.  He is currently representing clients who suffer from RSD in lawsuits in Georgia, North Carolina and Mississippi and is consulted by lawyers from across the United States on RSD cases. 

NOTE – American RSDHope wants to thank Nelson Tyrone for this article. We asked him to write it because it is a question we get asked often. CRPS is a very complicated diagnosis, as Mr Tyrone stated and as we all know. It often takes the typical patient seeing anywhere from 6-10 physicians before getting a complete and correct diagnosis.