“Primum non nocere”
When an individual is severely injured due to no fault of their own and has obtained representation, they eventually bring forth the basis for liability and damages. Ultimately, a jury is to decide whether the individual will or will not recover. The funds recovered on behalf of injured clients are meant to help them recoup their losses for past medical expenses and to recoup their losses from the often ensuing financial ruin that an inability to work and diminished earning capacity has brought with it. After that, any recovery is to be used by the client to ensure that their medical needs are met in years to come. Needless to say, medicine costs money. It is big business in the United States, but that's a different blog altogether. Injured individuals often require extensive and costly future medical care. Sometimes they require surgeries, sometimes just repeated treatments and costly medications. Additionally, as science advances and moves forward, a new procedure may be discovered that simply did not exist at the time the client sustained his or her injury and obtained a verdict.
All of the above begs the question, are defense medical experts violating the most basic obligation for a member of the healing profession, which is, first do no harm? By minimizing the injuries of a truly wounded or injured individual, medical experts, hired by the defense for the sole purpose of disputing the injured individual’s injuries, are openly preventing the individual from being able to afford to treat and care for their injuries, or themselves, down the road. Of course, one could say “if the individual is not truly injured he or she needs no funds to recover”, but that greatly misses the mark. There are medical experts that are after the truth. They testify for the defense when they agree with the defense and for the plaintiff when they agree with the plaintiff. They tell the truth. But there are so-called members of the healing profession that work only for defense attorneys. They are rarely, if ever, on the side of an injured individual, and that tells volumes of how seriously they take their obligation to do no harm.
This is particularly distasteful when liability is admitted. The defendant ultimately takes a position of “we admit liability, but also your client is a liar”. And how can it be? Is every single injured individual also a liar? Are liars the only ones injured through the fault of others? I wish that were the case, but we all know, it is not. It would be a much more just world, one in which bad things happen only to bad people, but that is not the case, sadly.
A child permanently disabled because of medical malpractice, did nothing to ask for or deserve an injury. One must ask oneself what makes more sense, that the world is fair and that every single person injured in an accident is actually lying about their injuries, or does it make more sense that a select group of so-called medical experts have chosen to deviate from the very first maxim of their profession? It is sadly the latter. Such experts accept money from defendants, review medical records and sometimes even examine injured persons in order to discredit them. If they do not discredit them, they are no longer used by the defense. This creates pressure to continue and find that injured individuals are, in fact, lying or mistaken about their injuries, regardless of the grim reality.
The sad truth is that if one agrees to examine an individual only to minimize their symptoms, the best case scenario is that he or she is willing to accept the inevitable possibility that they would be wrong and that they would be doing actual harm by providing testimony that would be instrumental in depriving the individual of resources he or she requires to obtain appropriate medical care. Unfortunately, many experts take it a step further and they will say whatever it is that the defense wants them to say, fully aware of the harm that they would be doing to the patient's future well-being by depriving them of the very means that they desperately need in order to treat their condition. I submit, therefore, that despite the maxim, “Primum non nocere” not all members of the medical profession are healers.
We operate in an adversarial system, to be sure. This means that we each tell our version of reality and the truth, like cream, is expected to “float to the top”. But very often, truth and cream are not alike and our system is far from perfect. When an individual’s life and life-quality is concerned invoking the very sanctity of one’s one and only life, perhaps some deviation from the adversarial nature of our system is warranted. When the work required of defense medical experts is in violation of the spirit of the oath they took, perhaps some deviation from the adversarial nature of our system is warranted. There are alternatives such as procedural rules that prevent medical experts from becoming aware of what side they are working for while rendering an opinion. Alternatives that allow the parties to mutually select a battery of experts to render an expert’s opinion on the injuries implicated. There are likely additional solutions to the very real problem with serving as a defense medical expert.
By A. Emma Flynn