Doctors claim uncertainty - and do harm.

I took the deposition of an infectious disease doctor the other day in a Workers’ Compensation matter. The doctor – let’s call him Dr. Smith – treated my client as he lay dying in a south suburban hospital. My client – Donald – was a plumber who worked for an HVAC company in the south suburbs. By way of background, prior to his death, Dennis was not the picture of health. He had battled various addictions for years prior to getting sober circa 1997. To his credit, he had been clean since. But the years of abuse had taken a toll. He had Hepatitis C and cirrhosis.

Donald and his wife Marie had been seeing the same primary care doctor[“PCP”] for years. After Donald died, the PCP contacted Marie and suggested she contact a lawyer. He explained that Donald had died of Legionnaire’s disease, a respiratory disease similar to pneumonia caused by the Legionella bacteria. The bacteria is usually inhaled from a water source. And, the PCP explained further that plumbers and other trades who routinely work around standing water, are at greater risk. Finally, the PCP explained that since Donald had been a plumber, AND that no one else in their household was sick, exposure had taken probably taken place at work. So Marie called me. After reviewing the appropriate medical records I filed the case.

I spoke with Donald’s primary care doctor who told me that while he was convinced Donald had been exposed at work, he couldn’t provide appropriate causation testimony. He had seen Donald prior to his hospitalization. At that time, Donald had signs of a serious respiratory disease. When antibiotics didn’t help and his condition worsened, the PCP had Donald admitted, and turned his care over to the Infectious Disease specialist.

The lawyer for the employer is an honorable guy. He told me that while the medial records strongly supported a work exposure, the insurance company wanted more. So I agreed to subpoena the Infectious Disease doctor, who I presumed would provide strong causation testimony. I hadn’t made that assumption lightly. In his treatment notes, Dr. Smith routinely noted that the patient “worked as a plumber.” And he repeatedly noted that no one else in the family was sick. Those notes suggested to me that Smith felt exposure had taken place at work.

Shortly after the subpoena was issued, I got a call from a lawyer at a prominent medical malpractice firm. I was informed he would be representing the doctor at his deposition. Those phone calls are rarely good news. Under Illinois law, the patient’s lawyer is permitted to discuss certain issues with the doctor before the deposition. Once the doctor hires a lawyer, there are no informal meetings before the deposition. And, invariably, a doctor who has lawyered up for his deposition is sending a very clear message – “Don’t count on me to help.”

On the day of the deposition, the doctor walked in at the appointed hour with his lawyer. The first thing I noticed was how young he looked. He looked more like a college sophomore than a infectious disease specialist. And early on, he was agreeable. He acknowledged the bacteria breeds in warm water and can exist in hot water tanks, air conditioning units and showers. And he confirmed that no one else in Donald’s family had become ill. And, he acknowledged that Donald’s work as a plumber would be a risk factor for exposure to the bacteria.

Then came the million dollar question – did he think the exposure to legionella was work-related? He had no opinion. And he based his lack of opinion on the fact that sometimes people get exposed to legionella while working out – at a health club. He testified that Donald could have been exposed while at a health club – either in the shower, hot tub or sauna area.

That testimony was absurd. With all due respect to Donald, the next time he entered a health club would have been the FIRST time Donald entered a health club. Donald stood about 5’10” and weighed nearly 275 lbs. He had high blood pressure and was borderline diabetic. Donald was not a health club guy. And to make matters worse, the doctor likely knew that. I pressed him and he acknowledged that during his treatment of Donald, he was never advised that Donald went to health clubs. But Dr. Smith wouldn’t budge. He was NOT going to concede causation.

Why not? The doctor faced no legal jeopardy. All he did was provide excellent, state of the art treatment to a very sick man. The group he was affiliated with faced no legal jeopardy, nor did the hospital. An honest answer would have simply strengthened the case against the appropriate party – the employer. And the employer is appropriately sheltered by Workers’ Compensation insurance.

Maybe he was a true believer, one of those doctors blinded by the propaganda put out by “tort reformers”. They mistakenly believe that medical malpractice filings are increasing and driving physicians out of Illinois. And as a result, some doctors have decided that they will never knowingly assist a personal injury lawyer – and if possible, do what they can to submarine a case. Their omerta against personal injury lawyers however, is entirely misguided. The number of medical malpractice lawsuits filed in Illinois has dropped 32% since 2003. And, the number of doctors in Illinois involved in patient care has been steadily increasing since 2006.

The involvement of lawyers representing doctor/witnesses shouldn’t be overlooked. That practice, to my recollection started in earnest around 15-20 years ago and appears to be the norm today. The lawyer meets with the doctor before the deposition and properly instructs the witness not to offer sweeping or unsubstantiated opinions. Do those same lawyers instruct doctors to refrain from offering appropriate causation testimony? I think most good defense lawyers leave the causation issue up to the doctor. Some of my more cynical personal injury colleagues think otherwise.

I don’t have the answer for why a doctor would would hesitate to give what appeared to be pretty obvious testimony. One fact however, cannot be argued. A doctor’s refusal to confirm an obvious causation link does indeed do harm – to a patient and his family.

The little snippet I have provided is from Malice, an otherwise forgettable 1993 film. But this scene is worth watching, as Alec Baldwin, in all his malevolent glory, as a doctor with a God complex, melts a lawyers face.