NPR had a story in which a Dr. Lars Aanning, a retired surgeon, admitted that he lied in his testimony in a malpractice trial fifteen years ago. In the malpractice lawsuit, another surgeon’s patient had suffered a stroke during an operation. The lawyer for the defendant doctor called Dr. Aanning as a witness, then asked Dr. Aanning if he knew of any time his partner’s work had been substandard.
Dr. Aanning said “no, never.” This, he now admits, wasn’t true.
Let’s start with a basic issue: this sort of testimony should not have been admitted into evidence in the first place. In a malpractice trial, the issue is if the doctor committed malpractice in that particular case. In general, neither the injured patient nor the doctor is allowed to bring in evidence of alleged malpractice during the care of other patients.
As lawyers for injured patients, we run into this problem all the time. We know that many doctors are ‘frequent fliers,’ so to speak, in that they regularly get sued for malpractice. As a study in the New England Journal of Medicine found, just 1.6% of doctors were responsible for all of the paid malpractice claims from 1991 to 2005. That’s an incredible number: all of the malpractice that results in a settlement or jury verdict is caused by less than 2% of the doctors in the country.
Normally, however, when representing a patient, we can’t get information about the doctor’s other malpractice incidences, much less use it at evidence at the trial. But, as Dr. Aanning’s confession shows, doctors themselves regularly try to use this sort of evidence in their favor at trial, even when it’s not true. There’s nothing worse in a malpractice trial than when a witness is allowed to assert a falsehood about an issue the injured patient wasn’t allowed to investigate during the lawsuit.
I applaud Dr. Aanning for coming forward, even it’s too little, too late for the patient in the case. Other doctors need to know that this sort of “white coat of silence” culture isn’t acceptable, and that, for doctors who have a conscience, going along with that unspoken code of secrecy can haunt them for years afterwards.