Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial
The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.
The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified, of course, that ‘‘the standard of care did not require additional radiology tests." So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But, for some reason, the doctor felt compelled to point out on direct that he would have ordered them himself, if he was treating the plaintiff. Gee, doc, why?
Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.
Wait, how many times have I heard about how you should not subject patients - not for nothing, a young boy in this case - to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI.
Hold on, there is much more:
The second reason is much different than in this part of the country and this state. I live in the worst malpractice community in the world. And . . . we practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can’t get insurance and things like that. So we order way more tests than are necessary to protect ourselves. And that’s just a fact. And so we get acclimated to practicing like that. So, there’s lots of reasons.
So you order potentially harmful tests on kids because it helps educate medical students and because you don't want to get hit with a medical malpractice lawsuit? Seriously?
Anyway, the trial court denied the plaintiffs’ requests for a mistrial because any mention of insurance was probably more prejudicial to the defendant doctor. This is at least arguably true, and it certainly gave plaintiffs' lawyer a wonderful opportunity to flush out the doctor's expert on cross-examination. (I could destroy this guy on cross while standing on my head.) But the court refused to give any curative instruction out of fear that it risked “further poisoning of the well toward the defendants.” I appreciate that concern, but I think prejudice is flying all over the place. Who knows how the dust settles? So, should we really worry all that much about causing more harm for the defendant when his lawyer elicited testimony that the court found prejudicial? It seems like the trial court was trying to protect the defendants from themselves.
After a 10 day trial, the jury came back with a defense verdict. The Connecticut Supreme Court reversed the trial court and ordered a new trial. Adopting the intermediate appellate court's opinion, the high court found that the trial court’s failure to issue a curative instruction in the face of the expert's inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury’s deliberations.
After the trial, Defendants' lawyer mused that he doubted that one comment was the difference maker in the trial. I agree. But plaintiff does get another crack with a fresh jury, and everyone is going to spend a lot of money. This is an outcome that would have been avoided if the witness had not been prepped to give improper testimony (or the defense lawyer had at least told the judge it was coming so that the court could rule).