By Kenneth M. Levine
Courage is a limited resource in our society. How many of us are truly courageous? We know there is great courage in the military and police who risk their life to keep us safe but on a daily basis how many of us take a stand in the face of great objection for what we believe is just and fair. We watch protest on television and comment on how we agree with the people taking a position and being heard but we do not join the protest ourselves. We see news stories of injustice, racism, anti-Semitism in society and say to our spouse or family how horrible it is, how terrible it must be for the victims and then go back to the latest reality show. It’s difficult to take a position, be counted and possibly risk the anger of your friends and family. We talk of peer pressure with children but that feeling never is outgrown. We face peer pressure all through our lives. It can shape us, affect us and in many cases silence us.
This peer pressure, this conspiracy of silence is on the mind of every lawyer representing an injured baby in a medical malpractice case. Not from other lawyers, but pressure on doctors not to testify against a fellow physician. The most frustrating words a lawyer for the baby and family can hear from a potential medical expert witness is “Yes, I do believe the doctor was clearly, negligent and hurt the baby but I cannot be an expert witness or testify because I do not want the medical community in my state to be angry with me”.
In every state in the country medical expert testimony is required or the case will be dismissed. The struggle can be to find a medical expert that not only believes there was a medical error but also has the courage to testify and risk being ostracized by his or her medical group, colleagues, and friends. The common perception is that doctors only agree to testify for the victim in medical malpractice cases for the money. While it is certainly true that medical experts on both sides are well paid, in my experience it has never been about the money. All of the medical experts I have dealt with already were successful physicians before they agreed to consider being medical experts. Of course, most of the medical experts will only testify to defend physicians. Those doctors are applauded in the medical community, thought of as hero’s, defenders of the righteous. No, a doctor testifying against another doctor, in particular if it’s the same local area, is not about money, not about making friends, not about being celebrated by his/her colleagues but all about having the courage to stand up and be counted, the fortitude to tell the truth no matter the cost, the backbone to take a honest position and stick to it. And of course, the mettle to withstand cross examination from a defense lawyer questioning the experts’ process, analysis, and integrity. As if the plaintiff’s expert would surrender honesty and principle for a few dollars.
It has been my honor to know so many fine and courageous medical experts over the years. The brilliant nerve surgeon from Philadelphia, the insightful pediatric neurologist from New York and the accomplished obstetrician/gynecologist from a major hospital in Manhattan are just three. All of the medical experts who have and still testify on behalf of the baby’s and families have my respect and my appreciation. They are the courageous protectors of true justice and integrity.