It’s important to designate the right experts during a significant case. Not only does it prepare the case for trial, it may also make the case easier to settle. In most cases it is expected that the treating surgeon in a spine case will at least be deposed or give trial testimony. There are advantages and disadvantages to designating this individual as an expert as well.
The treating surgeon as an expert
The reasons why a treating surgeon would make a good expert are clear. If a surgeon operates on a patient’s spine, he should know the case better than anyone else. The medical knowledge in the case is multi-tiered, based on pre-operative evaluation, diagnostic testing and performance of a definitive procedure. The surgeon is at the apex of the decision making process and usually knows it better than any other provider in the case.
The surgeon is professionally invested in the case. This arises from a sense of duty that a physician has for his/her patient. While all doctors have a duty to their patients, this is intensified in specialties that perform invasive procedures.
On the other hand, the treating surgeon may also be financially invested. Since surgery is often done on a lien, it is obvious that the surgeon stands to gain from a successful case. The defense will often exploit the magnitude of medical bills to overstate this investment.
Using a non-treater as an expert
The reasons for designating a non-treating surgeon as the expert are subtle. One of them is time. Most treating surgeons have active practices. They may not have the time and resources to review years of pre-surgical treatment records, depositions and defense expert reports. While these documents are important in forming some expert opinions regarding causality, etc., they are often unnecessary in forming an expert opinion as it pertains to the decision to operate for symptoms.
Sometimes, it does not make sense to place the expert in a position of commenting on another provider's care or the overall care of the patient throughout the case. This can be referred to as the “macro” picture. By using a non-treating expert, the treater can focus on the surgical analysis and decision making of his/her own “micro” aspects of the case and leave any controversies in the “macro” case to the expert.
Occasionally an attorney will have a relationship with a surgeon that is known to be particularly good with juries and expert work. On the other hand, the treating surgeon may have an unknown track record testifying in trial. This may be a valid reason to rely on a non-treating expert.
Probably the best reason to rely on a non-treating surgical expert is to protect against defense attacks. These are designed to undermine the credibility of the treating surgeon as a witness. These attacks are common, especially among defense attorneys who lack experience, evidence to support their case, and/or a moral compass. The attacks will intensify if the patient had a non-optimal outcome or a complication (together, seen in 15%-25% of spine surgery cases). By using an outside expert, the treating surgeon can focus on the actual treatment and will enjoy a qualified expert’s opinion to deflect unfounded attacks on his or her credibility.
Conclusion
There are pros and cons to using your treating surgeon as an expert. One should keep an open mind when deciding on an expert designation and consider the obvious as well as the more subtle variables. Knowledge of the case, personal investment and duty, availability, macro vs micro-focus, a proven track record and maintaining credibility are all important factors that should be considered.
Herbert West, MD
The views expressed are the personal views of the author and do not represent the views of The Brain, Spine and Joint Group, its managers, affiliates, partners, employees or its clients. Furthermore, the information provided by the author is not intended to be expert or legal advice.
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