Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Medical Legal Expert, Dr. Stephen Cohen
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In this episode...
Dr. Stephen Cohen is the Section Chief of General Surgery at the Veteran’s Administration and Associate Professor of Surgery at VCU Health. He is a consulting expert with over three decades of experience and a board-certified surgeon. Dr. Cohen holds an MD from UCLA and an MBA from Walden University.
While advances like telepresence (Zoom) have made expert witnessing more convenient, technology is not always a boon for experts. Since the advent of electronic medical records (EMRs), medical experts are often inundated with many thousands of pages of superfluous material, according to Dr. Cohen. This has led to a situation where professional nurse consultants are hired to weed through records, passing along only what is useful.
Check out the entire episode for our discussion on learning from mistakes, neutrality, and getting paid.
Introduction to Dr. Stephen Cohen
Speaker 2This episode is brought to you by Roundtable Group, the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom. Welcome to Engaging Experts. I'm your host, noah Balmer, and today I'm excited to welcome Dr Stephen Cohen to the show Now. Dr Cohen is the section chief of general surgery at the Veterans Administration, the VA and associate professor of surgery at VCU Health and a consulting expert with over three decades of experience. He's a board-certified surgeon with an MD from UCLA and an MBA from Walden University. Dr Cohen, thank you so much for joining me here today on Engaging Experts.
Speaker 1Thank you so much, excited and happy to be here today.
Speaker 2Absolutely, let's jump into it. So you've made a career of medicine and teaching, but how did you first become involved in expert witnessing?
Speaker 1So that's an interesting question. So when I was a third year surgery resident at Boston University, in the working in the emergency room, I got asked well, actually I was subpoenaed to come to court to testify and explain that what I saw from that gunshot wound in the head was actually brain matter. And I thought that was kind of cool because, you know, medicine and law are two different worlds. I then, when I finished my training and I started practice in Atlanta in 1994, my senior partner said oh, by the way, are you interested in reviewing a case because I'm too busy. And I didn't even know what that meant. I said sure, and he said you get paid for it. I said okay, so that's really how it started.
Speaker 1But I really look at the medical legal world. What I do now very similar to my doctor hat, because not only am I taking care of patients and currently taking care of veterans, but teaching, training and educating medical students and residents and, as you know, well-rounded, successful, competent expert witnesses have to be able to teach the medicine to the juries, to the court, to the attorneys, because none of those groups know medicine. I don't know law, for sure, but nobody else knows the medicine other than those that are doing it on a day-to-day basis.
Speaker 2You have been doing this for quite a while now. Have you seen any real significant changes vis-a-vis expert witnessing in general?
Speaker 1So the biggest thing that's changed is how we review charts, because back 30 years ago we were all looking at handwritten charts and I will tell you that the one benefit I see of the electronic medical record is nobody complains about Dr Coe it's handwriting. That certainly has been a big change. The volume of data that we have to go through now to look at a relatively simple case, to opine on whether it was standard of care or what the causation was, is overwhelming.
Speaker 1I mean, the average number of documents I have to look at now is six 7,000 pages of records and when you have an electronic medical record, you know half of it is, half of its duplicate, you know, and the other 30% doesn't mean anything. And probably 20% of those records are actually the progress notes, the daily vital signs, the laboratory work, the diagnostic imaging, what was going on with the patient where the decisions were being made. So that certainly has been the biggest factor in terms of how we review charts, biggest factor in terms of how we review charts.
Speaker 2So I used to work with electronic medical records, EMRs myself, and they ranged from terrible to almost usable. Would you say that the technology has assisted or it has made your life more difficult?
Speaker 1Definitely more difficult. I mean back 30 years ago, since everything was handwritten in the chart. The volume of documents that were now asked to review on average is 5,000 to 8,000 pages of electronic medical record. Wow, maybe 30% of that is useful to me. There's a lot of duplication. There's a lot of things that are not significant when I'm looking at did a provider meet the standard of care and did that complication cause any harm? Cause any harm? So it's definitely taken us.
Speaker 1It takes me a lot more time to get through the chart, for sure. But the other thing that's been interesting because I didn't use this 30 years ago there's been a whole different avenue of legal nurse consultants, meaning there's a whole group of nurses now that are also involved in the medical legal world and they are great. So when I get called from an attorney and a lot of legal nurses work now for attorneys to go through the 20,000 pages and pull out the progress notes, pull out the operative notes, tell me on day three, where's the vital signs? Because a lot of times on the doctor's progress note I can't find the vital signs. You know vital signs per nurses. Well, now I have to find that on page you know 11,332 and make sure it's the same day. It's time consuming, it's costly for attorneys, obviously, and it's really a challenge.
Speaker 2Do those consultants come out of your cut or do they get billed separately by the engaging attorney?
Speaker 1So it depends. So about half the time it's not the attorney that reaches out to me to talk about a case, it's actually a legal nurse consultant and I just got off the phone with one this morning. I'm working with an attorney. He sent me the records. Sometimes attorneys will have an in-house legal nurse consultant that works for them to do some of that work. Or some attorneys will be looking for an expert. They reach out to a legal nurse consultant and say I need a chronology. This is a confusing case. I'm not even sure if it's a case. They'll do the initial assessment. They'll say I think it's a case, I have a good expert for you, and then they hook us together and that makes my job so much easier. If I have an attorney that sends me 20,000 pages, I let them choose what they want to do. I say you know, obviously it's going to cost you a lot more because I have a higher hourly rate, but if you get a legal nurse consultant, so it really just depends on the attorney.
Speaker 2Are you typically inundated with a just superfluous material like that? Like do you get, if they don't have an on staff consultant? Uh, do you get entire 2000 page medical records? Um, and then you're expected to review the entire thing is is that the general expectation?
Speaker 1Well, it's interesting because I I uh talked to an attorney this morning who says there a lot of records. You just want me to send you the pertinent ones, and my answer? My answer is always how do you know what's pertinent?
Becoming an Expert Witness
Speaker 1Right right, right, right. So I always tell them I want every document you have. Let me decide what's pertinent and what's not pertinent, because if it's not pertinent I can go through it quicker than they can. Because you know again and I do about 50% plaintiff, 50% defense, and the reason I say that it doesn't matter what side I'm on the other side during my deposition will always say things like well, you're just a hired gun. Well, you can't tell me that on both sides. Come on Right, or? Well, dr Cohen, you're making this decision without seeing all the records. Is that fair for my doctor? So I want to see all the records. I want to be able to tell you, listen, that office visit from the orthopedic surgeon three years ago has nothing to do with the colorectal anastomotic leak that was missed. That caused the patient's death. Their fault, but they don't know. And it doesn't give the other side more ammunition to try to win simply on a technicality versus the facts of the case.
Speaker 2Do you have to pour through these records prior to accepting an engagement to see whether or not you can in fact help them?
Speaker 1So the way it works is that when an attorney reaches out to me, there is an expectation that I'm going to spend time going through the chart to give them an answer, right? So most expert witnesses, including myself, ask for a retainer because I know I'm going to spend three, four, five hours, whatever it is, six hours to go through everything. Four or five hours, whatever it is, six hours to go through everything. Having said that, they're about 35 to 40% of the time because I review.
Speaker 2You know, maybe I'm asked to review about four to five cases a month at this point.
Speaker 1Sure, about 35 to 40% of the time when I get asked to review a case from a plaintiff attorney, 35 to 40 percent of the time I tell the plaintiff attorney unfortunately this is a known complication and there was no breach in the standard of care. So they know that. I mean not every plaintiff attorney that takes a case knows that they're going to get a positive review.
Speaker 2Sure.
Speaker 1So, but again I'm not getting most expert witnesses me included. We're not getting paid for the answer, we're getting paid for time, right. So I have to spend time to go through the chart to give the answer, and most credible attorneys on the plaintiff side want the answer, want the honest answer. They need to know. Is this a case that's winnable in trial? Was there truly a breach in the standard of care? Likely than not. You know, a reasonable, prudent physician under similar circumstances would have done something different, which would have then prevented the complication that caused harm, whether loss of life and limb or permanent colostomy or some other catastrophic event or some other catastrophic event. So honesty definitely is the best and that's how every expert witness should approach any case that they look at Absolutely.
Speaker 2Do you work for a lot of insurance companies for these cases? I would imagine particularly on the defense side?
Speaker 1The insurance company well hires and I'm not sure exactly how it works, but they have their defense attorneys that will then reach out to experts like myself to help defend them. But it's really I'm working on behalf of the attorney who hired me for the insurance company.
Speaker 2I see, and is it different when? I should say when the end client is an insurance company as opposed to an individual? Does that change your job as an expert witness to any extent?
Speaker 1only because I'm an idiot, because if an attorney calls me today and wants to hire me, they may run the case by me. We usually make sure there's no conflict that I don't know the doctor, I don't know the hospital or that issue. But it may then take one, two, three, sometimes up to two months for them to give me all the records before I even start reviewing anything. And I don't remember the conversation. I don't remember what I had for dinner last night, for goodness sake. So I like to look at a record and I know when I say this in deposition, the other side deposing me always thinks I'm an idiot. But I don't sometimes remember whether it's a defense or a plaintiff case. It doesn't matter to me, it doesn't matter who hired me, I'm looking at the case. I'm going to give you the answer and I have done this on more than one occasion where I've talked to an attorney. I thought it was a plaintiff attorney and I said look they. You know there was a correct indication for surgery. I read the operative note. They did the right procedure. They check the anastomosis, they did an air leak test. It looked good.
Speaker 1I looked at look at post-op day one the patient's doing fine. Post-op day two the patient's doing fine. Post-op day three no issues, no fever, no white count. On the night of post-op day four there was a change in clinical status. They went right back to the operating room. They found a known complication and they fixed it. So I can't tell you that they breach, I can't help you. And he says actually this is a defense case. I go, oh, that's good because that's easy to defend. So I don't. It doesn't think, because I don't look at this case in hindsight. But I always get it. I get accused of looking at the case in hindsight, whether it's a plaintiff case or a defense case. But again, you can't have it both ways. But I look at it like I'm the practitioner. I'm standing at the bedside, knowing what the doctor knows. I know the surgery they did. They know the surgery they did. Here's the laboratory exam. Here's the imaging.
Speaker 2What would a reasonable, prudent physician do under similar circumstances? At the end of the day, it seems like you know at the times that you don't remember. It would just be a testament to proper expert witness neutrality which, at the end of the day, is what expert witness duty is to is to the neutral truth, not to the end client, like the attorneys is, you know. I'd like to ask you a little bit about your preparation method. So when you're getting ready for a deposition, for instance, or even, you know, examination, what sorts of things do you like to do to prepare yourself for what can at times be very, very difficult, getting peppered with questions by the other side and getting impeached by the other side?
Navigating Electronic Medical Records
Speaker 1And that's a great question and I will tell you that I have learned a lot in the last 30 years. I have done everything wrong in the last 30 years, but I've learned. Now I will tell you that the most important thing for me when I go into the deposition is to have that chart memorized. I want to know dates, I want to know times, I want to know names of nurses, I want to know names of everybody. I feel like if I know the case better than the opposing counsel, then whatever side I'm opining on, it's either the case goes away or they settle the case. I'll only do depositions on Wednesdays. I don't do more than one a week. I try not to do more than one or two a month. If I can highlight things, they're just factual things of the case that I can reference to, because the other side always wants to make it a memory test. Well, if you want to make it a memory test and I've memorized it bring it on and I will. And I and I, early on in my career, I didn't take the deposition as serious as as an expert witness should, and I know that sounds silly, but most expert physicians that do this kind of work have another job. Right, this is not my job. I'm still a full-time colorectal surgeon. I'm a section chief. I have 30 people that report to me. I do a bunch of other stuff. This is what I do in addition to my daily job. But when I put my hat on as an expert witness, I have a duty either to the attorney who has a client who was harmed, or to a physician who I'm trying to defend. It's like my analogy is and it's a funny analogy If you go to a Broadway play on the last night of the performance and they've been maybe on Broadway for three years and they're doing six or seven shows a week, but you want to go before they close and you want to go on the very last night of the performance, do you care that the actors are tired? Of course you don't. You want a good performance, right? So I really feel like that.
Speaker 1I, early on, I didn't take it as seriously. I didn't have the chart memorized. I let the opposing counsel know the case better than I do because they've been working on this case a lot longer than me. Usually. They know the ins and outs of it. They've been, they've done all the depositions you know versus me where I may have given you my opinion a year ago and maybe I wrote a report, maybe not.
Speaker 1Now. A year goes by when I've done every now. Oh, next month we want to do a deposition? Okay, I got to go back like square one. So that's the most important thing and that's what separates some expert, seasoned experts from not seasoned experts, one of the criticisms I always get again, no matter what side I'm on oh, oh, dr Cohen, you do this a lot, right? So they criticize me for doing a lot of cases. But, but you know, do you want the airline pilot who's that's his first day of flying, or do you want the seasoned airline pilot? Right, it's what do you want? So I think that my previous mistakes has helped me, and the fact that I will go into every deposition knowing the case better than the attorney asking me a question makes me a much better expert for whatever side I'm opining on.
Speaker 2Absolutely. I'd like to talk a little bit about contracts. You had briefly mentioned taking a retainer. Do you have any other specific terms that you use to either protect yourself or to make sure that you get paid in case it goes to settlement, anything like that? And also one thing that I haven't asked a lot of experts about but I'd like to start doing is travel expenses. How do you bill for things like travel, especially if you have to go far to a venue across, you know, in another state, for instance?
Speaker 1So we could take each one of those. So I actually have a retention contract and again, I didn't do this in the past. This is one of the learning things, because I've had, early on in my career, just had a fee schedule like here's my retainer fee, here's my hourly charge and nothing else written down and nobody signed anything. And I have been burned in the past of reviewing charts, giving opinion, spending time and not getting paid. So, with the help of an attorney, a contract attorney helped me come up with a contract that spells out the duties. Here's my fees. These are the expectation, here's the late fees, here's what happens if what my duties are, what your duties are. So that obviously most attorneys know about contracts because they're attorneys. Sure, but even having had that, I've still recently had to sue an attorney because, even though he signed the contract, he claimed he didn't want to pay me because he didn't sign the contract. I mean, it's the craziest thing ever. And he wound up losing. I mean, come on, and it wasn't about the money, it's the principle. You sign a contract, you didn't honor it, but then you don't pay because you say you didn't sign the contract, but I have a copy of it. Right, I mean seriously. So anyway, the so contracts I think are important to set up expectations and the travel expenses are really built into.
Working with Legal Nurse Consultants
Speaker 1If I have to go to trial Now, trials are not as common, obviously. I mean if you look at all medical malpractice cases are not as common, obviously. I mean if you look at all medical malpractice cases across the country, 90% of them settle before they go to trial. If you look at all the cases that actually go to trial and I probably do one to two trials every one to two years I mean it's not that often Most cases settle.
Speaker 1The way I handle travel is the travel expenses are paid by the hiring attorney. So to fly me out there, stay in a hotel, I don't. I don't eat much, so meals I don't care. I usually fast anyway, so I'm usually into my fasting stage, so I don't eat. That saves, saves everybody money. But usually the side that retains me will pay for travel. Now that was before COVID. Since COVID, a lot of courts in lots of jurisdictions across the country are letting me do live Zoom video into the courtroom and I've already done about three of those and that works great. It's like I'm there so I could be sitting in my office talking to a jury. It's great. So there are ways that are less expensive to get me to testify. Most attorneys will say you're much more powerful in the courtroom, and I get that. I mean, I was at a trial a few months ago. It's getting off the stand drawing pictures of the colon. It is much better, there's no doubt, but most travel is paid by the hiring attorney.
Speaker 2Are those travel expenses reimbursed or are they paid up front? And then the follow-up to that is when you are zooming in. Tell me about connecting with the jury and managing demeanor using telepresence.
Speaker 1Yeah, so that it's definitely a challenge. But normally the first question, the travel expenses build afterwards, gotcha, and the reason being is because I think sometime late early last year, earlier this year no, I think it was last year that they wanted me to fly in Wednesday. They wanted me to fly in Tuesday, which I did in the evening, to testify Wednesday, and then I was going to leave Wednesday night to go back home. What do you think happened? They couldn't get me on the court on Wednesday. I had to stay a full day the next day and then I couldn't get out even that night day the next day, and then I couldn't get out even that night. I had to stay the Friday. So all the travel has to be billed after, because the attorneys don't have any control of the order or how long it takes to pick the jury or the judge wants to take a break. There's other things going on. It's a challenge.
Speaker 2Absolutely. And then regarding zooming in or telepresence and connecting with the jury.
Speaker 1So that's a challenge for sure. So in one instance I didn't even see the jury. They could see me, but I was talking to the attorney, just like I could see you. So I was just talking to the attorney and they could see me on the screen. So I was just talking to the camera. So it's it's. You know. The problem is I don't, you know, I will. Because of my personality, I will play off the body language and the subtleties that you get when you're in person, which you can't do on Zoom. I can't if I can't see them. So I just talk like I'm teaching to the students and do the best I can and try not to talk too fast. When I talk too fast in court, the judge will say Dr Cohen, please slow down. I thought that, but on Zoom I can go crazy. So it's a challenge but it can be done. And it's really up to the attorney to make sure that they ask the questions and they get the responses they want to make their case, whatever side they're on.
Speaker 2One thing you had mentioned is drawing. Do you like to use a lot of demonstratives when you are either on the stand or in depositions, even in expert witness reports? Do you like using charts and graphs and drawings and stuff like that?
Speaker 1I mostly use the visuals if I'm there in trial, because most people and me included, I'm a visual learner. It's hard for me to show you what a hemorrhoid looks like or what the colon looks like, especially for jury members. Remember, they don't have any medical experience, they have no idea what I'm talking about. Like are especially for jury members. So remember, they don't have any medical experience, right, they may they have no idea what I'm talking about. And I have to really. I have to really and I've taught first and second year medical students in the past. So you have to really be careful.
Speaker 1When you say bowel resection, they, the residents, know what that is because they've been doing it, but a first year medical student doesn't know. When I say bowel resection, no, there's a part of the large intestine or the colon that I cut out and I put the two ends back together. So you have to really change how you say it. And visuals in trial that I can draw the colon, I can draw what part I'm cutting out, I can draw where the liver lives or where the spleen is located, because most people are visual learners. I don't normally do that on deposition, but on deposition what, I'll tell the opposing counsel, much to their chagrin, is let me draw this for you, because this is what I'm going to use when I'm telling the jury of what I mean. It's very difficult for me to explain to you what the CAT scan showed without you showing me, without me showing you so, and on Zoom it's impossible. But I did do it on the last time. On Zoom, I was able to draw and then share my computer and it worked great.
Speaker 1So you found a way around it. Right Cause, on Zoom, you could share your screen, so we practiced ahead of time. I pulled up my screen. You can get that imaging. I can take my pen and draw the colon. It worked fantastic.
Speaker 2Do you ever have outside help preparing demonstratives, or is it something that you always do or typically do in real time?
Speaker 1So it really depends on the attorney. A lot of times the attorney will say we're going to get somebody to draw images of the gallbladder, images of the colon, of what happened or what an ileostomy is, and we'll send them to you ahead of time and you tell us that that's what you want and we'll use those. So the attorney will do that if they want, or I tell them I can draw it. But there are some very powerful companies out there that I've seen that do some fantastic work on medical illustrations and 3D imaging and it's really powerful because, again, most people me included are visual learners and if you don't know anything about medicine, having a diagram, a picture, 3d imaging, really is a powerful image that they can take, you know, in order for to understand the medicine.
Speaker 2One thing you had mentioned is that you only have to go to trial once or twice every year or two. With so many settlements, how do you protect your income? Obviously, you have to prepare for every case as though it may go to trial, but how is it managing expectations in terms of what you're going to make for a particular case when there's a very high likelihood that it's going to go to settlement? How do you build that in?
Speaker 1Well, I guess I've never been asked that question. I don't really build in my fee for what I do. I mean I still make a lot of money being a doctor so that's my main source of income. But I mean anything I do medical legal work or other reviews is just extra work that I do outside of being a doctor.
Speaker 2And I get asked this.
Speaker 1You know, and I get asked this a lot under deposition, I mean my, my annual income from expert work is less than 20% of my total income anyway. Sure, so I don't know. You know, in terms of a business model, I'm not really looking at it as a business model per se. It's really and I teach this to the residents I've always been a big believer of multiple streams of income.
Speaker 1When I was in high school and my mom tells a funny story, at one point in one summer I was 16, I had four different part time jobs. I'm just, I'm wired different than everybody else. That's the only thing I can say. I've always had more than one stream of income and I and I tell the residents and I tell my own kids, the best time to look for a job is when you already have one. Don't wait until you get fired or don't wait till you quit, so you should always have something. So, medical, at one point in private practice, believe it or not, I had seven different streams of income. I was a doctor, I was doing some medical legal work. I was involved in industry, teaching, training, educating other surgeons on innovative new colorectal procedures or products that are currently used in practice today that were just coming out. There's a anti-adhesive barrier that we use now in surgery, but I was one of the original clinical instructors on how to use that product and give my data, so I've always been involved in extra things.
Preparation Methods for Testimony
Speaker 2Wow, I'd like to shift gears for a moment. Are there any cases that come to mind where it served as sort of a touchstone moment for you as an expert witness, either reinforcing something or changing the way that you go about doing something as an expert witness? What were the important moments for you during your 30 year career?
Speaker 1That's a great question. I will tell you I was doing a case in Georgia on the plaintiff's side. The case was a motor vehicle accident with a very bad anorectal sphincter muscle injury. He gets taken to the hospital. The colorectal surgeon repairs the sphincter muscle. But because it was such a devastating injury felt like the patient needed to have a diverting colostomy to keep the stool away from the area to allow the sphincter muscle to heal. It was going to be a temporary colostomy and it was going to be closed once everything healed. So he called his general surgery friend in because the colorectal did the colorectal part. General surgeon did the laparoscopic colostomy and end colostomy stapled off what he thought was the distal end. End colostomy stapled off what he thought was the distal end. Post-op day three, four, five, his belly started to get bigger and bigger and bigger. No action. Out the colostomy. They put a scope in what they thought was the proximal part of the bowel and it came out the rectum. They had brought up the wrong end of the bowel. By the time they took him to the operating room the right colon had ruptured. There was stool everywhere. He wound up surviving, but six more operations and now a permanent colostomy.
Speaker 1And I was on the plaintiff's side, opining that bringing up the wrong end of the colon is a breach in the standard of care Thought that was a pretty simple one, right.
Speaker 1But during my testimony they brought up the surgeon's operative note and the. They were reading every single word out loud and the aha moment to me was and this was early in my career was that you have better make sure that anything you put in a chart may be blown up someday for a jury to read. So again, I never really thought of it like that and I really harp on and teach the residents that whatever you put down on paper back then or in the electronic medical record, there may be an attorney or a jury looking at what you're writing someday. Why is that important? I've done a lot of cases where the providers taking care of the same patient are fighting amongst themselves and saying the other provider did something wrong. If you fight with each other in a medical record and you put it down in writing, you may as well just write the check. So that was really an eye-opening experience.
Speaker 2Wow, that is quite the experience. How long ago was this? Oh, this was in the 90s. That is quite the experience. How long ago was this? Oh, this was in the 90s, wow. One other thing I'd like to ask you about is, in general, a positive attorney, expert witness experience. What are the general factors that lead to a good quality engagement, not just a positive verdict for the end client, but a good engagement that will maybe lead to more future engagements down the line.
Speaker 1That's a great question, I think for me personally and this is an interesting story is let's go back to how I prepare for deposition.
Contracts and Travel Considerations
Speaker 1If I do well in the deposition and I have the chart, memorized, dates, times, what happened, and I'm clear on the science and I can back it up with either literature or education, experience or training, if I do my job right, even though the other side who doesn't like what I'm saying, they get it and either will drop the case or they'll settle the case.
Speaker 1There has been a handful of times that attorneys have reached out to me from the other side who said to me you were on the other side 10 years ago and during your deposition we realized that we were in trouble, that we either can't win or we had to settle this case, and we knew at some point we were going to reach out to you to help us. And there's the answer to help us. And there's the answer If you can do, even though the other side doesn't like you and will do everything they can to discredit you, if they then turn around and use you to help you in their case, I think that's the mark of a good expert witness. There's no other way I can grade that.
Speaker 2Absolutely. Before we wrap up, do you have any last advice for expert witnesses, particularly newer expert witnesses or even attorneys working with expert witnesses?
Speaker 1Well, let's talk about other, because I get asked a lot by my colleagues and there's a lot of physicians that really don't think what I do is a good thing. Right, I get a lot of pushback from my own friends I thought we're my friends because how could you talk to a plaintiff attorney? That's terrible. Well, there's a couple of reasons for that. The reason number one is remember what I told you 30 to 40% of the time I tell a plaintiff attorney they don't have a case and they don't sue the doctor. So how many times in my career have I prevented a physician or provider from getting sued? A lot of times. Good point, a lot of times. And the other thing I tell attorneys and everybody thinks I'm crazy. But if I have to tell a plaintiff attorney, like I did this morning, that you don't have a case, I always say I am happy if the patient lived, or the family member, I'm happy to talk to your clients because I'm not emotionally involved with this case, right? Everybody's emotionally involved except me, the expert witness. I'm just looking at a chart. I don't know the patient, I don't know the details, I'm just looking at records. So I comment frequently, will get on the phone with a client or patient who passed away's husband which I did recently and explain to them why there was no malpractice. Now, sometimes they don't like the answer as well, but the you know the benefit from doing this work is I do prevent a lot of physicians from going down the path of getting sued. That's thing number one. Thing number two I think that being an expert witness has made me a better doctor.
Speaker 1Why is that? I have to keep up a lot in medicine, right? Why do I say, well, are you saying you don't keep up with medicine? No, I'm not saying I don't keep up with medicine, but the things that I review are sometimes not commonplace. What do you mean by that? Well, I recently reviewed a case of a hemophiliac patient who underwent surgery and died of bleeding. Well, I've taken care of hemophiliac patients, but the guidelines change. What is the indication for surgery? What are the new guidelines for how you manage a patient with hemophilia, right? So medicine is constantly changing.
Speaker 1How I did medicine and surgery in the 90s or 80s, when I started training, is not even close to the way we do it now, right, so it makes me keep up with current guidelines. It makes me keep up with new medications. I have to know the half-life of medications when they were given. Things like that. That are the nuances. And when you get deep in the weeds of opining on a case that you have to do to make your case, either somebody breached or did not breach the standard of care, so it makes me a better doctor. That's the second thing.
Speaker 1But what I would tell new expert witnesses is you have to take this job seriously. This is not a part-time oh, I get to make extra money. No way, you're not going to be credible. You have to be able to talk to a plaintiff attorney. You have to be able to talk to a defense attorney. You can't just do one side. That does not make you credible for sure. You can't just do one side. That does not make you credible for sure.
Speaker 1And if you're going to talk to a plaintiff attorney, you have to sit across the room during a deposition if you're doing trained in your specialty that has decades of experience and look at them in the eye and tell them you breached the standard of care and that breach harmed a patient. If you can't do that, do not get into this line of work. Wow, and I've had to do that. I've had to do that and it's, and it is it intimidating. Well, it was 30 years ago to me, not anymore, but I have had to sit across the room I've met many expert witness do and look at a surgeon that's trained, that's been in practice longer than me, and explain why he breached the standard of care.
Speaker 2That sounds absolutely intense.
Speaker 1Well, when the residents come up and want to get in and I tell them that, half of them say yeah, I'm not doing that.
Speaker 2Well, better to know before you get into it. Dr Cohen, thank you so much for joining me here today.
Speaker 1I appreciate it. Thank you so much for the opportunity.
Speaker 2And thank you to our listeners for joining us on another episode of Engaging Experts Cheers. Thank you for listening to our podcast Engaging Experts. Our show notes are available on our website roundtablegroupcom.