Injured people face multiple roadblocks to bringing viable cases. Expert witnesses being disciplined for testifying is one of them.

There are many, many reasons our system of determining responsibility in medical legal claims is inadequate. I will not bother to attempt to list all of them, nor offer a list off the top of my head. Suffice to say, the list is long.

I was reminded of this when a notice came across my desk: recently the American Association of Neurological Surgeons (AANS) censured three of its members for providing testimony on behalf of patient/plaintiffs (and against a fellow neurosurgeon).

When you are harmed and you believe it was the result of a medical provider doing something wrong, one of the first things your lawyer must do is get competent medical testimony from an expert witness confirming the wrongdoing. Almost always, this expert is the same kind of doctor as the doctor who harmed you (and often, is the same subspecialty of doctor).

Now, for some doctors, it is “relatively” easy to find another doctor to agree to review your records and provide an opinion. However, for other types of doctors, it can be very, very difficult.

One such specialty is neurosurgery. A quick google search (citing the AANS) shows that just under 3,700 neurosurgeons practice in the US. The vast majority of these neurosurgeons don’t want anything to do with the medical/legal system. A small minority of them do agree to evaluate cases, the vast majority of whom do so on behalf of the health care provider.

There is then a small group of neurosurgeons who willingly evaluate claims on behalf of patients (and against their fellow colleagues).

Now imagine that, in doing so, you risk disciplinary action from your professional organization.

These censures (you can read them here: Notice of Disciplinary Action) are described in little detail, so it is difficult to evaluate the specifics of each one. However, one caught my eye.

Dr. Stringer from Flowood, Mississippi was censured in part because he testified that a delay in surgery caused a worse outcome in the patient because he “did not cite scientific or clinical evidence”. Let’s unpack that for just a second.

The care in question involved a delay in surgery to decompress an abscess that was putting pressure on the patient’s spinal cord. As ANY NEUROSURGEON KNOWS, if there is pressure being put on a patient’s spinal cord and causing neurologic deficits, the longer you wait to decompress it, the less likely the patient will have full recovery.

There is little literature on this point, because it would be incredibly unethical to do. Imagine gathering up one hundred patients, each with a similar condition. For twenty of them, surgery is performed immediately. For twenty more, there is a delay of five hours. For twenty more, the delay is ten hours. For twenty more, the delay is twenty hours. And for the last twenty, surgery is delayed for forty hours.

Can you think of any patients who want to roll the dice and enroll in that study? Can you think of any reasonable surgeon who would enroll his or her patient in such a study? Instead, it’s it more likely that your surgeon will immediately bring you to surgery to decompress your spinal cord?

So of course there is no literature on this subject. Yet apparently Dr. Flowood deserved censure for this testimony.

How do you think that affects Dr. Flowood’s desire to testify again on behalf of a patient? How do you think that affects other neurosurgeons reading this censure?

How often do you think the AANS disciplines its members for giving testimony in support of a neurosurgeon?

I can understand that testifying against a fellow colleague is not for everyone. I have tried to imagine being in their shoes and being asked to review a case involving a fellow attorney who is accused of negligence. That can be a difficult decision to make.

What is frustrating for me, is the effort undertaken by organizations like the AANS to dissuade its members from providing a valuable and necessary service – to allow injured people to have their day in court and let a jury decide whether they should win or lose.