In Opinions, which is section 9.7.1 of the American Medical Association (AMA) Code of Medical Ethics, a physician serving as an expert witness has a duty to act as an objective, independent professional whose opinions are based on science, and not act as an advocate whose opinions win lawsuits. The question, which I now raise, is: “Are opinions expressed by a medical expert, which have 95 percent confidence (the sine qua non of science), based on science or based on advocacy?” Phrases used commonly in courtrooms for decades include “more likely than not” and “a reasonable degree of medical probability.” They are used as evidence for admissibility, and as cudgels to enhance the expert’s credibility with the jury. However, what do these phrases actually mean? Professional organizations, like the National Commission on Forensic Science, recommend abandoning these phrases because they have no scientific validity and are not used in scientific research. These terms are used by lawyers to cloak a legal opinion with the authority of a scientific one. This potentially misleads jurors into thinking that the expert is more certain about data than the data actually supports. The threshold for what is “reasonable” is more idiosyncratic than factual and is often exploited by attorneys to bolster their biases. This is no less true for judges.
Nowhere is this more illustrative than in a medical malpractice case I will describe without identifying details. The lawsuit involves a laparoscopic gallbladder removal performed on October 11, 2015. The plaintiff alleges a breach of the standard of care during the surgery, which leads to injuries. These injuries necessitate a second procedure 11 days later at the same hospital by another surgeon to address bilious drainage, and a third procedure, which is performed at a tertiary hospital one month after the second procedure, requiring an extensive removal of part of the liver and the reinsertion of the proximal hepatic duct into the small intestine. The lawsuit is filed on January 17, 2020. The plaintiff represents himself, pro se, and personally retains a qualified medical expert. The defense attorney represents the defendant hospital and the defendant surgeon. Nothing prohibits pro se representation in a medical malpractice lawsuit, but, as will be shown, the cards are stacked against plaintiffs who do.
On August 4, 2022, the plaintiff’s expert prepares a report explaining that, based on a reasonable degree of medical certainty, the standard of care is breached during the 2015 cholecystectomy. As documented in the operative report, the surgery is complicated by hemorrhage and should have been converted into an open procedure. On December 5, 2023, the plaintiff’s expert prepares a supplemental report. However, there is no medical expert identified by the defense attorney. According to the defendant surgeon, who is not the medical expert, based on “a reasonable degree of medical certainty,” there is no breach of the standard of care during the 2015 cholecystectomy. In 2023, the court denies the plaintiff’s attempt to add new claims for gross incompetence, fraudulent misrepresentation by the defense, and punitive damages. The court rules that these additions are denied because they come after discovery is completed. On August 26, 2024, the defense attorney moves for a summary judgment in favor of the defendant hospital and the defendant surgeon, and a partial summary judgment is granted. It holds that there is no factual allegation in the complaint that supports negligent claims against the hospital’s health care system other than respondeat superior. Essentially, the hospital is let off the hook.
The case officially comes to an end on September 3, 2024. In response, the plaintiff requests an appeal. However, the judge denies the request. The court finds the plaintiff’s expert opinion legally insufficient to meet the burden of proof required by Maryland law. Although the plaintiff’s expert prepares two expert reports, neither satisfies the specific legal requirement for a “certificate of merit” in the eyes of the court. Essentially, there is a procedural problem. Because the plaintiff represents himself pro se, he fails to file the formal Certificate of Qualified Expert within the strict deadlines required by the Maryland Health Care Malpractice Claims Act, which is within 90 days of filing the complaint. It matters not that the same act and the Maryland Rules of Civil Procedure require the identification and disclosure of defense experts within 120 days of answering the complaint. Because the plaintiff could not provide a substitute “scientist” whose methods meet the court’s standards, the case is officially closed on September 3, 2024.
In its opinion, the court acknowledges litigious circumstances caused by the defendant surgeon’s performance. It matters not that there is a lack of scientific evidence that establishes a basis for adherence to the standard of care as claimed by the defense. After all, the plaintiff attorney, in this case the pro se plaintiff, has the obligation of proof. Nevertheless, the case is terminated and, without a trial, the plaintiff is denied this opportunity. Between January 17, 2020, when first filed, and September 3, 2024, when terminated, there are four years, eight months, and 20 days during which time no defense expert is identified, defense attorneys make tons of money, the malpractice carrier earns interest and collects premiums, and the injured party is never made whole. This would never happen with the CCC+C method, whose name stands for “Collate, Compare, Calculate, and Certify.” Knowing the facts of the case as I do, the lawsuit would have settled well before four years, eight months, and 20 days. This is another way CCC+C levels the playing field.
Howard Smith is an obstetrics-gynecology physician.
