The Conspiracy of Silence in Medical Malpractice Cases

In a medical malpractice case, as in many other types of cases against professionals, the plaintiff is required to prove his case with expert testimony from another professional to the effect that the defendant failed to provide proper care to the plaintiff.

Such testimony is often required to even start a case: under a special law enacted for the benefit of doctors (thanks to a powerful lobbying effort) if the plaintiff cannot furnish such testimony within 120 days of filing suit, the suit will be dismissed and the plaintiff and his attorney have to pay the doctor’s attorney’s fees and costs. Of course, a doctor need not respond with an expert report of his own defending his conduct, and if he sues you he doesn’t have to provide any kind of report. This is what passes for “equal justice” these days in a state where lobbyists and their money can buy legislation.

Be that as it may, as a result of this statute, attorneys who handle claims for consumers spend a lot of our time begging professionals to come forward and testify in public against other professionals. I have no problem finding a doctor willing to review the medical records and tell me if my client has a good case: that’s easy. Getting them to say it in public is a different story.

We have had dozens of patients come into our office and tell us that one of their doctors has told them that they should “go see a lawyer” because of what another doctor did, or that one of their doctors told them that “this is the worst case of malpractice I have ever seen”. Yet when we contact those doctors, they clam up in a hurry.

What’s going on here? Some of the more wild-eyed of my colleagues who handle these cases, and some members of the public, call this a “conspiracy of silence” – and say that all doctors everywhere are sweeping each other’s errors under the rug. The same accusation is made of police officers, accountants, lawyers, and other groups. The idea is that these groups will stand together in the face of any outside threat, even if it means supporting a bad apple in their group.

There is some truth to that, of course. Police officers and doctors, among other groups, feel themselves misunderstood and overly criticized by the public in general, and as a result tend to have a knee jerk reaction against such criticism aimed at members of their professions. But as someone who has both represented and sued members of these groups, I think that there is also something much less sinister going on, and it is this: Nobody wants to testify against someone they are going to have to deal with in the future.

For doctors, this is a big issue: if you are a neurosurgeon in Dallas, even as big as the medical community is, you know all of the other neurosurgeons. They may not be your friends and you may not think much of them, but you see them in operating rooms and doctor’s lounges in hospitals every day. You will see them at medical meetings and seminars. They sit on the boards of hospitals at which you may want to practice someday.

Now imagine that you are such a doctor and a lawyer you don’t know calls you and asks you to review a file for negligence. Would you testify against the other doctor, knowing that you will see him often and that he will complain bitterly about you to other members of the local profession? Almost certainly not. There are limits anyone wants to go to for a stranger.

On the other hand, if you are asked by a defense attorney to testify for another local doctor, the situation is reversed: now you are not risking censure by your colleagues, but instead get praised, and instead of making enemies, you are creating goodwill and doing favors for people who will owe you favors in the future.

The result is that most local doctors, lawyers, accountants, builders, etc. will not testify against another local colleague, but will readily testify for the defense of their colleagues. This may not be “fair” or in the public’s best interest, but it isn’t necessarily a “conspiracy”, either. These professionals are human, just like the rest of us. That’s why they make the mistakes that get them sued, and its why they won’t testify against the professional just down the hall.

Of course, it is also true that many, many doctors will never testify in a malpractice case against another doctor – even one they don’t know who lives in another state. Some of these doctors simply don’t want to get involved in any case, which is understandable. Many, however, are happy to testify for another doctor, but never for a patient injured by malpractice. Put another way, there is in fact a “conspiracy of silence” which results in doctors refusing to publicly point out the mistakes of other doctors. Anyone who handles medical negligence cases has to deal with that fact – and they had better also understand the other reasons doctors won’t testify against other doctors.

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