San Diego, CAIf you have ever thought of suing a doctor, you’ll want to hear what Dr. David Priver (pictured) has to say about what constitutes medical malpractice in the eyes of the expert witnesses who would very likely be involved in that kind of litigation.
An obstetrician and gynecologist for 33 years, Dr. Priver has reviewed more than 150 cases where there were accusations or concerns about physician negligence. Although he has given opinions on behalf of doctors, most of his work has been done for plaintiffs.
“You have to separate in your mind the difference between complications and negligence,” says Dr. Priver, speaking from his office at LaMaestra Medical Center in San Diego.
“Many complications have nothing to do with negligence. Sometimes there are bad outcomes even when the best standard of care has been delivered. There will always be a certain number of cases where that is the situation,” he adds.
About once a month, Dr. Priver is asked to review a file. He first determines whether or not there has been a “bad outcome.’’ If there is, he begins to study the details of exactly what took place. He wants to know if the doctor acted properly and according to established “standard of care.”
If the standard of care was not met, the next question Dr. Priver wants answered is the question of “proximate cause.” That means, in essence, did the failure to meet the standard of care actually cause the injury or bad outcome.
In some cases, it is possible the bad result had nothing to do with what the doctor did.
“In other words, you can have a bad outcome and a clear deviation in standard of care but the deviation in the standard is not what caused the bad outcome,” explains Dr. Priver. “In that case I have to say that the case does not have merit because it doesn’t meet that final criteria or what we call ‘proximate case.’”
Dr. Priver explains it another way. “Suppose a doctor wrote a prescription with the incorrect dosage and the patient suffered an injury or adverse result but it had nothing to do with dosage of the drug,” he says, going down his checklist.
“You have injury, you have violation of standard of care but you do not have proximate cause. The violation is not what caused the injury.”
Of course, there can be lots of different opinions on what constitutes the standard care. Physicians can disagree on what exactly is the best procedure or best practice in different situations.
“That’s why we have trials,” says Dr. Priver. “We can have differences of opinion. What I say is standard of care may not be what someone else may consider to be the standard of care, and therein lies the adversarial nature of these proceedings.”
When the differences of opinion are significant enough, people sometimes end up in litigation and even sometimes take medical malpractice disputes to trial. However, Dr. Priver is quick to remind people that medical malpractice trials are actually pretty rare. He has testified in only seven or eight trials during his career.
And as an expert witness, he knows that it is not easy for plaintiffs to win those cases.
“It is not easy at all,” says Dr. Priver. “When doctors go to court as defendants, they win 80 percent of the time. People tend to trust doctors and I don’t see why they shouldn’t - but it is hard to win cases in a trial. They are easier to settle out of court, but to win in a trial is not so easy.”
Dr. David Priver is an obstetrician and gynecologist and a graduate of the Wayne State University Medical School in Detroit, Michigan. He is board-certified and recertified. He is the author of adopted AMA Resolution: “Peer Review of Expert Medical Witness Testimony,” December 1997. He has given deposition testimony 20 times and has never been disqualified as an expert witness. He can be contacted through the LaMaestra Medical Center in San Diego or his website at www.obgynexpertwitness.com.
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