Courting Justice: ENT Surgeons in the Witness Box

For the interrogatory, the physician witness is asked to respond to written questions that will likely include those about their own background and training. The deposition, which might come months or even years after the case has begun, is conducted under oath and recorded. As for the trial, most medical cases never get that far; it is usually in everyone’s best interests to settle out of court. If a trial does occur, the physician witness will be asked to respond to questions posed by both the defense and the plaintiff’s attorney from the witness stand.

It is important to note that a physician’s notes on the case, as well as any communications between the physician and the attorney, are considered legally admissible in court—a fact that Dr. Terris learned the hard way. “Preparing for my first deposition, I did not know that attorney–client privilege does not apply to expert witnesses, meaning that all my notes and correspondence with the attorney—emails and texts—were discoverable,” he recalled. “So, during the deposition, the attorney asked if I’d made any notes, and I said yes and handed them over. There were some things I might not have included in there. Also, whereas normally a deposition lasts anywhere from 90 minutes to three hours, in my very first deposition, I was tortured for nine hours!”

Julie Wei, MD, is the Dr. Alfred J. Magoline, MD Endowed Chair in the division of pediatric otolaryngology at Akron Children’s Hospital and professor of otolaryngology head-neck surgery at Northeast Ohio College of Medicine and University of Central Florida College of Medicine. Dr. Wei stresses the importance of using the preparation period to become familiar with the medical records and other specifics pertaining to the case. “I make sure I have a clear understanding of the timeline of events, as well as what is stated in the affidavit of the other side’s expert witness, and the depositions of the defendants or those involved and named in the suit,” she said.

Before opening a single file, however, the physician must honestly evaluate whether they are the right person for that case. “I’m board certified in otolaryngology, and I can practice the whole gamut of otolaryngology and pediatric ENT as well, but I primarily do legal cases within my sub-specialty of voice and swallowing, breathing disorders—basically the pharynx, larynx, and trachea,” explained Gregory Postma, MD, professor of otolaryngology and director of the Medical College of Georgia Center for Voice, Airway, and Swallowing Disorders in Augusta, who became involved in legal work 25 years ago. “That said, there is considerable overlap between this and other ENT sub-specialties.”