The “Conspiracy of Silence” in Medical Malpractice Cases
In a medical malpractice case the injured patient 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: in many states there are laws for the benefit of doctors (thanks to a powerful lobbying effort) that require plaintiffs to furnish expert testimony to prove he has a case before the case can even get filed. 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. These laws are obviously and grossly unfair—just another example of how rich interests have bought legislation in the last twenty years.
Because of the requirement for “expert” testimony, attorneys who handle claims for consumers spend a lot of our time begging professionals to come forward and testify in public against other professionals. The problem isn’t that doctors don’t know which of the local doctors have screwed up and are hurting patient.
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 this “conspiracy of silence” happens because doctors feel that they should all “stick together” in the face of any outside threat, even if it means supporting a bad apple in their group. This “us vs. them” mentality can be seen in other professions, as well. For example, police officers have been caught time and time again covering for misdeeds and even criminal activity by other cops.
And then there is the problem of “not wanting to get involved”. When a good doctor testifies against a negligent doctor, it takes time away from his practice. Its inconvenient, time consuming and unpleasant.
But I think the main problem is this one: 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. If you are a doctor in a smaller city like El Dorado, Arkansas, you know all of the doctors in that city, and they know you. 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. Very likely your kids go to the same schools and your families belong to the same country club.
Now imagine that a lawyer you don’t know calls you and asks you to testify against a local doctor in a malpractice case. 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 doctors will almost never testify against a local colleague, but will readily testify for the defense of their colleagues.
The bottom line is that 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 the public is endangered because of it. When good doctors refuse to speak up about bad doctors, everyone loses.