When Dr. Lars Aanning was asked in trial whether he had ever considered a fellow physician’s care to be substandard, his reply was simple:
“No, never,” Aanning said. “No, never.”
In a recent [interview with ProPublica](https://www.propublica.org/article/doctor-confesses-i-lied-to-protect-colleague-in-malpractice-suit), Dr. Aanning clarified that he felt pressured by the medical community, and lied to protect a surgeon whose skill he had, in fact, questioned. The plaintiff in the case lost. Although it is impossible to know with certainty the degree to which Dr. Aanning’s testimony swayed the jury’s decision, it undeniably helped the defendant.
Nothing is more frustrating than watching someone lie. Unfortunately, even under oath, there are instances where physicians and other health care providers feel compelled to cover for one another in civil lawsuits, even when it means lying.
In medical malpractice cases, plaintiffs carry the burden of proof. This includes the burden of proving that the defendant health care provider was negligent. In Washington, that means that the plaintiff must prove that the provider “failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs.” (RCW 7.70.040).
Essentially, the only way to meet this burden is for another health care provider, one trained to provide the same type of care, to testify that the defendant did not exercise the necessary degree of care, skill, and learning. As you can imagine, there are very few situations where the defendant cannot also find a fellow physician willing to say just the opposite — that the defendant acted at or above the standard of care. Less often, defendants present testimony from the their coworkers, as in the case described by Dr. Aanning, where a witness’s purpose is to “vouch” for the defendant’s competence. In the end, a jury must weigh the testimony offered on each side, and determine whether or not the plaintiff has met her burden.
The system only works when jurors can weigh the testimony of unbiased witnesses, especially given the prestige and respect given to physicians.
As Dr. Aanning points out in the ProPublica interview, the official position of physician organizations is that doctors should be advocates for patients. In some instances, this may mean reporting a colleague or testifying that a fellow provider did not meet the standard of care. However, in reality, a statement against a colleague or fellow member of a professional organization can result in isolation, suspicion, censure, or even expulsion from the organization.
Earlier this year, [Harvard Law School’s Bill of Health Blog](http://blogs.harvard.edu/billofhealth/2016/03/06/expert-testifying-in-medical-malpractice-cases-gets-penalized/) reported on a recent decision in federal court (Barrash v. American Ass’n of Neurological Surgeons, Inc., — F.3d — (5th Cir. 2016)) against a surgeon who took action against the American Association of Neurological Surgeons after it censured him for testimony he provided as an expert witness against another one of its members. The Association’s censure was based on a complaint that alleged the surgeon had violated the Association’s rules that members review all “pertinent” records before offering expert testimony. The physician then sued the Association for damages caused by injury to his business after the censure. The court sided with the Association, stating in part that the surgeon’s right to due process was not violated.
Given that professional medical associations aren’t in the business of reviewing the testimony given by its members, this selective application of the Association’s rule has the effect of sending a strong message to members (and other physicians): Don’t testify against your peers. If you do, you risk retaliation. This is a sad example of payback against physicians who dare to testify that another physician’s care was substandard.
There is no way to skirt the need for testifying experts in medical malpractice claims, and no way to force them to be truthful and candid, despite the court’s requirement that they testify under oath. Physicians, like all of us, have pressures and concerns that can at times interfere with their ability to practice honesty and good judgment.
