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Think Before You Testify
It's time for a primer on testifying for the plaintiff in a malpractice action.

FROM THE CHIEF MEDICAL EDITOR, Paul S. Koch, M.D.

It seems from recent reports that following a certain high-profile LASIK lawsuit that cost the defendant a cool $4 mil that the plaintiff's expert changed his mind about his testimony. He called the defendant's attorney and asked if the case could be reopened so he could testify for the defense instead.

The reason for the change of heart isn't clear. Perhaps it's scientific integrity based on new information. Perhaps, as the plaintiff's attorney suggests, the surgeon has become a pariah and wishes to redeem himself among his colleagues. Or maybe, just maybe, he's panicking as he realizes that this verdict opens the door for him and his clinic to become the target of hundreds of similar actions brought on by bloodthirsty lawsuit-mongers who advertise for refractive misadventures.

HERE ARE THE RULES

No one ever has to testify for the plaintiff. You're asked to review a record and then report, usually verbally, your findings. If they thrill the attorney, you're asked if you'd like to be a paid member of their team, helping them to win and the other side to lose. It's OK to take this job, but if you do you must understand that you'll be working for the plaintiff against your fellow surgeon. You should feel that your fellow surgeon's actions are so egregious that the full force of our legal system should be brought down upon him or her, and you want to help make that happen.

If you want the plaintiff to win and the surgeon to lose, take the case. If you don't want the plaintiff to win, don't agree to take the case. If you don't want the defendant to lose, don't agree to take the case.

If you feel you want the case to be a precedent for legal action, against all other doctors, including you, take the case. If you don't want the case to come back to haunt you, don't take the case.

If you decide to take the case for the plaintiff, you must remember the basic rule: You are rooting for him to win and the surgeon to lose. If your team wins, be proud of your victory and hold your head high. But if you help the suit go forward by joining the plaintiff's team while all the time secretly hoping the defendant will win, shame on you.