Courting Justice: ENT Surgeons in the Witness Box

Should a physician witness ever work for the plaintiff’s side? Absolutely, say experts. It speaks to the integrity and credibility of the witness. “I encourage everybody to do work on both sides,” Dr. Postma said. “I prefer defense—I think that’s almost everyone’s bias—but we’re not only trying to defend doctors that may have had a bad outcome when they’ve not done anything beyond the standard of care. It’s also important that we police our profession. That’s part of taking care of patients around the country. Now, there are doctors who, by reputation, only do plaintiff cases, which basically says you’re simply a hired gun; someone gives you a retainer and you say whatever they want you to say. That’s the kiss of death for someone in academic medicine.”

The prospective expert witness should also make sure they are prepared to commit considerable time and energy to the case. “I was initially surprised at how much time it takes to do this type of work,” Dr. Wei said. “The process takes a long time, and it can even be emotionally exhausting, particularly when it concerns a bad outcome for a pediatric patient. As a parent, I have to manage my reactions to focus entirely on the facts.”

Getting Started

How does a physician find their way into doing legal case work? Some, like Dr. Terris, had someone to guide them. “I was fortunate to have a mentor, Bill Fee, who was the chair of otolaryngology–head and neck surgery at Stanford University, where I trained and worked,” he said. “He referred some cases to me and kind of showed me the ropes and walked me through the process. That was extraordinarily helpful.”

Dr. Gillespie became interested early in his academic career. “Some of the more senior physicians in my practice were doing this sort of work,” he said. “They thought it was a good side gig that was also a way to serve the profession. Also, my wife is an attorney, so I had some exposure to law and always found her work and career interesting.” Referrals to Dr. Gillespie as an expert witness have been via word of mouth. “I’ve never gone out seeking expert work or had services advertised, which is frowned upon anyway. I was practicing in South Carolina. If I remember correctly, I started getting referrals from our major malpractice carrier to review cases involving colleagues within the state.”