What to do when physicians get subpoenaed as witnesses: A forensic pathologist explains [PODCAST]

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“You’re a clinician. You had a patient die under your care, and now your hospital is being sued. You are not named in the lawsuit, but you are being asked to give a deposition. How much of your time is this going to take? If some lawyer sends you thousands of pages to review before scheduling multiple phone calls and prep sessions and, finally, a deposition under oath … what do you say? What is your obligation to testify in court as a scientific expert?”

Judy Melinek is a forensic pathologist and CEO, PathologyExpert Inc.

She shares her story and discusses her KevinMD article, “What to do when physicians get subpoenaed as witnesses.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show we have Judy Melinek. She’s a forensic pathologist, and she wrote the KevinMD article “What to do when physicians get subpoenaed as witnesses.” Judy, welcome to the show.

Judy Melinek: Thank you for inviting me.

Kevin Pho: So we’ll get to your article in a little bit, but first off, can you share your story and journey to where you are today?

Judy Melinek: Well, I’m a forensic pathologist. I trained in New York City in 2001, and I subsequently worked in California for close to 20 years, and currently I am based in New Zealand. So I moved here less than a year ago, at around the beginning of the COVID-19 pandemic, and I’ve been working as a forensic pathologist performing autopsies, both coronial and forensic, in Wellington, which is the capital of New Zealand, for the past nine months.

Kevin Pho: Wonderful. And I also understand that you give medical opinions in terms of what’s going on in mainstream media. So talk about that path and how that came to be.

Judy Melinek: Sure. Well, several years ago my husband and I co-authored a book called Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner. It became a New York Times bestseller, and it was about my training at the New York City Medical Examiner’s office from 2001 to 2003, those two years of fellowship training that you need to go through in order to be a forensic pathologist. And at that time, that’s when I first got approached by the press: “Oh, can you speak about this case? Can you speak about that case?” Whenever there’s a forensic case in the news, people want to know more about the real forensic pathology, not the fake stuff you see on fictional TV like CSI.

Kevin Pho: What do you say are some of the misconceptions about your field that you want to clear up right now?

Judy Melinek: Well, for one thing, the biggest misconception is that we only deal with homicides, that we only deal with suspicious cases. That’s actually a minority of our cases. About 10 percent of an average forensic pathologist’s practice is a violent or suspicious death. The remaining, basically 80-90 percent, are natural deaths of people who die at home and don’t have doctors, or accidental deaths where people might fall or trip, or suicides. So we do examine any death that’s sudden, violent, or unexpected, and the unexpected ones are a bigger proportion than the violent ones.

Kevin Pho: Tell me about some of the challenges that you face in your field currently. What do you see for the field over the next several years?

Judy Melinek: The biggest challenge facing my field right now is that we do not have enough forensic pathologists. Right now a very small minority of medical school graduates go into pathology in general. First you have to do pathology before you can do the fellowship and subspecialty in forensic pathology. So we have a shortage of pathologists throughout the world, not just in the United States, and then from that subgroup we have an even more dire shortage of forensic pathologists. So those are things that we need to address right away in order to make sure that we have enough practitioners going forward who can do this very, very important and specialized medical specialty.

Kevin Pho: And give us a sense of what kind of character traits, what kind of medical students, and what kind of physicians would select to go into forensic pathology.

Judy Melinek: The problem we’re having right now is that forensic pathology is not a required rotation in any medical school, and it’s not offered even as an elective in many. And pathology itself is often just taught in didactic sessions, so there aren’t required rotations. The students who tend to go into the field tend to have had some sort of contact in the laboratory setting with a researcher who’s done pathology, or they have had some personal experience working in that field, either through family connections or through their academic route, which is a shame. We really should be requiring it as at least a one-week rotation, is my thought.

That said, the characteristics, the traits that tend to draw people into this field are obviously unending curiosity and an interest in constantly learning, because I’ve got to tell you, one of the wonderful things about pathology is that you never get bored. Even now I’m in my mid-career, where most of my colleagues from medical school are starting to feel a little bit of burnout, or they’ve kind of stabilized their knowledge base, where they’ve caught up to what they really need to know. And in pathology you always get something new every day. You’re constantly discovering something new every day. It’s not the same old, same old, ever.

Kevin Pho: So take us through a day in the life of a forensic pathologist, and give us an example of a typical day and maybe some of the cases that you would typically see.

Judy Melinek: In a typical day, I usually go into work and I get a list or a report of all the people who have died in the past 24 hours, or if it’s a Monday and I haven’t worked the weekend, I’ll get the people who have died over the weekend. And where I am now, it’ll be anywhere from about one to five or six cases in a given day. Five or six is a lot, and sometimes we spread them out over several days. A typical autopsy takes about 45 minutes on the short end, up to 2-3 hours on the longer end. Some autopsies can take much longer if they’re homicides.

But we’ll review the paperwork in the morning and get into the morgue, the operating theater, they call it here in Wellington, at around 9:00. Usually I’ll be out of the morgue or operating theater at around noon. I’ll be able to have lunch, and then in the afternoon I dictate and I do paperwork, look at slides, and talk to family members or talk to the coroners if I need to.

Kevin Pho: So let’s transition now to the KevinMD article that you wrote a few years ago. It’s titled “What to do when physicians get subpoenaed as witnesses.” I’m certainly interested in this. So for those who didn’t read the article, can you just walk my audience through it and share the story of why you decided to write it?

Judy Melinek: Part of the job of a forensic pathologist, besides doing the autopsy part, is to testify in court about legal cases. The whole word “forensic” means having to do with the legal profession or the public forum. That’s where the origin of the word is. So we’re all trained in our fellowship how to testify and how to speak to juries in a way that they can understand. It’s not that dissimilar from speaking to patients who don’t have a good medical grounding: simplifying terms, not using words like “atherosclerotic cardiovascular disease,” saying “heart attack,” or saying “hardening of the arteries from cholesterol.” Those are phrases that people understand.

So all of the advice in that column has to do with my reaction to all my colleagues who absolutely freak out every time they get a subpoena, whereas for me, I get a subpoena pretty much once a week. It’s not unusual for me to testify in cases, and I don’t find them frightening anymore. So I figured, from my friends who have been going through the process, whether it’s because of a medical malpractice lawsuit or whether it’s just because one of their patients has died and they’re being called to testify in a civil or criminal case related to that, it’s just to make them more comfortable with the notion of testifying and what’s expected of them.

Kevin Pho: Well, you’re absolutely right. A lot of physicians I know, they do kind of freak out whenever they go into any type of legal proceeding. So let’s go into those tips and details. What are some of the pieces of advice that you could share to make them feel a little bit more comfortable when they’re undergoing a legal proceeding?

Judy Melinek: Well, the first thing is take a look at the subpoena and make sure it’s even relevant to you. Does the name of the case even mean anything to you? Does it look like a patient’s name or something you’d recognize? Usually there’s a phone number on there that belongs to an attorney, so you can call up the attorney and talk to them and just find out what this case is about. You don’t have to divulge any information; you can just get information from them. What is the case about? Who died, or if it’s not about a death, if it’s about malpractice, who is the patient? Just get the basic information that you can then bring back to your risk manager or your attorney, if you have one representing you.

In most cases, if you’re working in a hospital or you have malpractice insurance, which most doctors do, there are people whose job it is to represent you. So then you can bring that information back to them and say, “I got the subpoena. It’s about this patient who died on this day,” or “It’s about this patient who was injured on this day. I don’t remember it,” or “I do remember it.” And that way you can communicate with your attorney, to help them present a defense if you’re the one who’s being sued, or, if you’re not the one who’s being sued, to help guide you in terms of preparing you for testimony so you can put your best foot forward.

Kevin Pho: Now what about if a physician is being questioned, whether in a deposition or, God forbid, if they’re on the stand? They don’t have the training that a forensic pathologist does. So you mentioned a few tips, but go into more detail. What are some of the things that they can do in terms of the presentation whenever they’re questioned in a legal proceeding?

Judy Melinek: Well, the first thing is, before you go into any legal proceeding, do your homework. I mean, you’re a doctor; you know how to do homework. Read up about the case, remind yourself, refresh your recollection about it if it was one of your own. Or even if you know very little about the case because you are just ancillary personnel, just refresh your recollection and try to remember what it was about.

More importantly, it’s important to understand that there’s a difference between a trial situation versus a deposition situation. In a deposition situation, they’re just trying to get basic information about the case. If you are the one who’s being sued, obviously you need the guidance of your attorney who’s representing you. But if it’s somebody else involved in the case who’s being sued, then obviously you’re not on trial. The important thing is to be honest, to be forthright about your opinions, and to be knowledgeable. Explain things in ways that non-doctors can understand, just like when you’re explaining it to a patient.

Kevin Pho: And if a physician wants to look up any resources in preparation for being a witness or being deposed, what kind of resources do you recommend? Anything online?

Judy Melinek: Just the same resources you use when you’re doing your medical practice. So whatever textbooks you rely on; peer-reviewed publications are excellent. But if you’re going to be relying on references in order to support your opinion, then bring those references with you, or at least make them available to your attorney so that they can disclose them to the other side, and so that the other side can be prepared to review them and be prepared to answer questions about them, why those references may or may not be relevant to the case at hand.

Kevin Pho: We’re talking to Judy Melinek. She is a forensic pathologist, and she wrote the KevinMD article “What to do when physicians get subpoenaed as witnesses.” Judy, I understand you’re the author of a few books. Can you share what you have co-written?

Judy Melinek: Yeah, so my husband is a writer, so we’re a writer-doctor team, and we work together, and it’s been a wonderful experience. Working Stiff was our first book. That’s the memoir that we wrote about my training as a medical examiner. So for anybody who’s interested in forensic pathology training, or knows somebody who’s interested in the field or interested in going into the field, that’s a great book for them.

And then, for those of you who love a good detective novel, we now have a detective series. Jessie Teska is the name of the detective, but she’s also a forensic pathologist, loosely based on me, and she’s in San Francisco. The first book is First Cut; it came out last year. And then Aftershock just came out about two months ago. It’s the follow-up in the series. Each one can stand alone, and it’s about a hard-boiled detective, a forensic pathologist in San Francisco. And all the cases in there are based in some part on cases that I’ve performed myself, where I’ve done the autopsies or the death investigation.

Kevin Pho: One of the things that you mentioned earlier is that you want to get more interest in terms of medical education when it comes to pathology. So for those medical students who may be listening out there and may be interested in pathology as a career, what do you recommend?

Judy Melinek: So I have some really good resources at my website. If you go to pathologyexpert.com, there are links there. There are also links at drworkingstiff.com, which is my writing site. And there we have links to a blog with frequently asked questions about how to become a pathologist, or the most common mistakes that people make about forensic pathology. Those are blog posts I have.

And then I do encourage students to obviously reach out to me. You can follow me on Twitter. You can follow me on Facebook. I’m easy to find; just Google my name. It’s unusual enough. So I do share information for students about learning opportunities in forensics. I also will recommend going out to the National Association of Medical Examiners. That’s the professional organization that represents forensic pathologists in the United States, or the American Academy of Forensic Sciences. Both of them have websites and fantastic resources for students, some of them free. So there are opportunities for you to go to conferences, attend conferences, whether virtually, online, or in person, as a student, and see if this is the right field for you.

Kevin Pho: And my final question: What do you want to leave with the KevinMD audience?

Judy Melinek: Ooh, my take-home message. I guess it’s that forensic science is public health, and a lot of people don’t recognize the link between the two. But by performing autopsies and writing death certificates for people who die suddenly, violently, and unexpectedly, we are at the front lines of recognizing pandemics. We’re at the front line of recognizing carbon monoxide intoxication. We’re at the front lines of recognizing workplace hazards that can kill people. So a certain amount of understanding of what we do that’s beyond just the television CSI homicide part would be very much appreciated. And reach out to your local neighborhood forensic pathologist. You might be surprised at what you can learn.

Kevin Pho: Judy, thank you so much for sharing your time and insight. And thanks again for being on the show.

Judy Melinek: I really appreciate it. Thanks.

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