Article

Guest Editorial

Even when we win, we lose (a little)

Recently, I had the opportunity to defend a colleague in a lawsuit. Without going into the details, we won the case because we showed with certainty that this surgeon did nothing wrong and the patient had an excellent outcome.

Regardless of the outcome, though, these lawsuits still have an impact on everyone involved.

AS THE EXPERT

As one of the experts retained to defend this surgeon, I was consumed with the case over the past year in ways I find hard to describe. This was based on my desire to be the best expert I could be and to make sure the jury understood that nothing was done incorrectly. In fact, the care the patient received was excellent and, had it not been so, the patient could have potentially lost the eye.

Not only was I defending this physician, but I felt I was defending our entire profession as well. The vast majority of physicians go out of their way to provide outstanding care to their patients, even in the setting of complications. The scary part is that some patients, attorneys and “experts” equate having a complication with negligence. To the contrary, I would argue. Some of the cases I am most proud of are the ones in which I was there to support and care for the patient following a complication and, ultimately, deliver an excellent outcome.

Experts face other costs during this process. At one point during the recent trial, the plaintiff’s attorney projected my fees and invoice on to the screen in the court room. He was obviously trying to give the jury the impression that I was profiting heavily from being an expert in this case. While I believe I came back with a reasonable response, what I did not share was how much the case consumed me from an emotional standpoint. The invoice did not include the dozens of hours I thought about the case and my testimony over the year to ensure I knew the case cold to defend the surgeon in a way the jury would understand.

IMPACT ON THE DEFENDANT AND PLAINTIFF

While I can only speak to the stress I felt as the expert, I can only assume it is magnified significantly for the person being sued. Once a claim is filed, it starts an oftentimes years-long process for the defendant.

Aside from the emotional stress the defendant feels as a result of a lawsuit, he or she also suffers a very real and significant economic impact. For example, in this case, the defendant had to take seven business days off of work but still had the same overhead to cover. That does not include all the time off work the defendant had to take for meetings with attorneys and depositions.

The plaintiff faces costs as well. Losing the case means he would not receive the damages sought and potentially be responsible for tens of thousands of dollars in legal fees.

So, in my case, even though the defendant I helped won, the outcome was not without significant penalty for all involved.

CONCLUSION

I am not saying that all malpractice suits are without merit — some definitely are warranted, and in those cases a penalty makes sense. However, we still lose (a little) even when we win — as long as we have experts willing to help in cases without merit. OM