Most people are surprised when I tell them about by one of the biggest and most common problems faced by my clients: their doctor’s absolute refusal to give any testimony whatsoever. These are physicians who know firsthand that my client really was seriously injured, and know even better than I do how severely these injuries have affected the patient’s life.
But for some reason the vast majority of treating physicians refuse to give any testimony whatsoever on behalf of their patients, on any topic.
We carefully explain and stress to these doctors that all their patient and we want is for the doctor to tell the truth, and that the testimony will only take about an hour. They still refuse to testify.
We explain that we will fully compensate them for all of the time they spend in the case, paying them whatever hourly rate they demand, (which, for doctors who do testify, is frequently over $1,000 an hour) to make up for the patients they won’t be able to see in that time. They still refuse to testify.
We explain that we’re even willing to videotape the doctor’s testimony at their office so they never actually have to set foot in the courthouse and never even have to leave their office. They still refuse to testify.
Injury Cases Are Impossible Without Medical Expert Testimony
In an injury case, medical testimony is absolutely required in order to have a trial. If my client is claiming a medical injury and I don’t have a doctor who is willing to testify as an expert witness about several important issues, then we will lose, plain and simple. The case is over before it even starts, because the judge will throw it out, saying there’s no need for a trial if I don’t have a doctor to give the legally required medical expert opinions that the law requires in an injury case.
Here are some examples of topics that frequently require expert testimony in court:
- whether a crash caused (or contributed to cause) a particular injury;
- whether the need for treatments is related to a particular incident;
- whether the medical bills were reasonable; and
- whether an injury is permanent.
American Medical Association Changes Its “Code Of Medical Ethics” To Allow Doctors To Refuse to Testify
This embarrassing trend of physicians refusing to get involved and act as advocates for their patients has become so ingrained in the medical profession that the American Medical Association’s Code of Ethics has actually been changed to reflect and allow this disregard for patients’ legal rights.
For many years, the AMA Code of Medical Ethics said:
As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.
That language was in there because responsible medical professionals knew that patients absolutely had to have their physician’s expert assistance and testimony, and that there was no one else whose testimony was an adequate replacement for their treating physician’s testimony.
In a major embarrassment to the medical profession, in 2004, the AMA changed its Code of Ethics to completely delete the sentence underlined above. Instead of saying that “the physician should furnish medical evidence” the AMA inserted language saying it was optional. The new phrase says:
When physicians choose to provide expert testimony, they should . . .
By giving the physician the option to refuse to testify, the AMA completely deleted the physician’s ethical obligations to assist patients in asserting their legal rights.
There Is No Good Substitute For The Treating Physician’s Testimony
The treating physician’s refusal to testify has a tremendous damaging effect on the patient’s ability to obtain justice. When the treating doctor refuses to testify, that means that the lawyer has no choice but to send the client to a non-treating doctor for testimony, because that’s the only option left to try to get justice at trial.
But that fact is then used by the insurance company defense attorneys to make it look like the injured person and their lawyer are shopping for a doctor who will say anything they’re told to say, even though that’s not true.
At trial, the very first questions the defense attorney will ask this non-treating doctor on the stand will be:
Isn’t it true that you never actually treated Mr. Jones?
Isn’t it true that Mr. Jones’s lawyer picked you to testify in this case, instead of his treating doctor?
Why did they pick you instead having the treating doctor testify in front of this jury?
So the only reason you saw Mr. Jones was so that you could come here to court to testify to convince this jury to give him money on this case, right?
The insurance company lawyer will make this the centerpiece of the defense at trial. They will paint the jury the false picture that Mr. Jones’ case is completely fake, the main proof being that the jury never heard any testimony from the treating doctor. The insurance company lawyer will hint, or maybe come right out and say, that if Mr. Jones’ case was legitimate, and he was actually hurt, his treating doctor certainly would’ve been here in court to tell the jury all the facts. And the insurance company lawyer will hint that the reason the treating doctor didn’t testify at trial is because the treating doctor wouldn’t say the things the lawyer wanted the jury to hear, and that’s why they got the non-treating doctor.
To jurors who have never experienced how difficult it is to get a doctor to come to court, that is a very effective strategy for the insurance company to use, because it makes a lot of gut level sense. The jurors think “Well, why wouldn’t the treating doctor come to court if the person was genuinely hurt and it was cause by this crash? The doctor probably would have said something that hurt the case, so the sleazy lawyer hired someone who would say what they wanted him to say.”
The jurors have no idea that’s not what’s going on, and that most doctors absolutely refuse to come to court under any circumstances, no matter how much they would be paid.
Example Of How This Works In Real Cases
For instance, say Mr. Smith had been to his treating physician several years ago complaining of back problems. Those complaints spanned several months in 2010. Then he never complained again until he was in a car crash in 2015. In the 2015 incident, a driver talking on a cell phone ran a red light and hit Mr. Smith’s car. Mr. Smith then went back to the doctor complaining of back problems, but these problems were far worse than his 2010 symptoms. The doctor decided he needed spinal injections, and gave those injections, which helped for a time before they wore off, as they usually do.
A few months after he’s finished treating, Mr. Smith hires an attorney, who files a lawsuit against the other driver. But Mr. Smith’s treating physician tells the lawyer that he refuses to come to court under any circumstances. So Mr. Smith and his lawyer have a choice:
- They can completely drop the lawsuit and Mr. Smith gets no recovery at all, OR
- They can send Mr. Smith to a non-treating physician for testimony.
That’s not really much of a choice. It’s really a “damned-if-you-do, damned-if-you-don’t” situation, because neither choice is good. It’s not fair for Mr. Smith to get no recovery at all just because his doctor won’t come to court. And it’s also not fair for the jury to think someone’s committing fraud just because the treating physician refuses to testify.
Issuing A Subpoena To Force The Treating Physician To Testify Won’t Work
Sometimes people think that a lawyer can simply issue a subpoena to a treating physician forcing them to come to court to testify and give opinions about the injuries, treatment, etc. But that’s not true. The lawyer for the patient can issue a subpoena to force a doctor to come to court to testify, but there is a major loophole that most people don’t know about: if an expert is subpoenaed to come to court, they can only be forced to testify about facts, and cannot be forced to give any opinions. Since almost all of the crucial evidence a treating physician can provide is opinion evidence, issuing a subpoena to a physician will not fix the problem.
Cox Health System And Mercy Hospital Both Have Policies In Effect That Say Their Doctors Are Not Even Allowed To Talk To Lawyers Unless The Doctor Is Subpoenaed
In Springfield, Missouri, where Curran Law Firm is located, the two main hospital systems are CoxHealth and Mercy. In the last few years, we have been advised by both of these institutions that they have put in place policies preventing lawyers from even being able to speak with the clients’ doctors to find out the facts about their client’s injuries and treatment, and requiring the lawyer to send a subpoena. This is not driven by a concern that the lawyer’s going to sue the doctor, because the policy applies even when the patient had a great recovery and when the lawsuit is against, for example, a drunk driver who hit the patient.
There are some courageous physicians who stand up and do the right thing, recognizing that they can and should help their patients obtain justice in court. They testify truthfully and are well paid for it, because they’re giving up a lot to be there in court. I cannot say enough good things about doctors like that, but unfortunately, most doctors aren’t in that group.
All Physicians Should Help Their Patients
Everyone agrees that being a physician is a good, honorable profession. Unfortunately, over the years most physicians have gotten away from helping their patients, and are refusing to do the right thing and testifying in court. Physicians should instead be willing to help their patients by testifying when requested. It goes without saying that the testimony should be truthful and that physicians have the right to get paid well for the time they spend testifying, because they’re losing time they could otherwise spend treating patients.
But it’s extremely unfair to the injured patient to be forced to have a non-treating physician come to court to testify because it makes it significantly harder for the patient to get justice, due to the skepticism juries have for testimony of non-treating physicians.
