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Saturday, October 18, 2008

Docs opining on McCains' prognosis divide into two groups: Those who know what they're talking about, and those who're guessing

My latest guest-post at HughHewitt.com distinguishes between those doctors who've actually examined and treated John McCain, who say his prognosis from his 2000 cancer surgery is quite good, and those who are just guessing, who want to scare people into thinking that it's not. This brings out my cross-examination lust, which unfortunately is likely to go unsated.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar).

Like many courtroom lawyers, a large part of my professional life has involved questioning and cross-examining expert witnesses, and I've dealt more with physicians, by far, than with any other profession. During the first decade or so of my practice, anywhere from a third to a half of my cases involved either personal injuries or health insurance coverage matters (which typically involved cutting-edge medical procedures and/or drugs), and each such case typically had multiple physician witnesses. I'd guestimate that I've put questions to somewhere north of seventy-five different MDs at one time or another — ranging from country general practitioners to some of the world's finest research scientist/physicians. It's a challenge, one that takes both preparation and experience, and it can be a whole lot of fun.

Lawyers who regularly examine physicians have a couple of different terms of art to describe a certain kind of doctor. I'm referring specifically to the kind of doctor who hasn't actually ever examined the patient, and who sometimes hasn't even had personal access to all of the patient's medical records, test reports, and other data. Nevertheless, this kind of doctor will confidently stride into court, take a solemn oath, and then proceed to second-guess the patient's own highly qualified and well-credentialed doctors.

Typically these "experts" are testifying for money, so the rather obvious term of art courtroom lawyers use among themselves to describe such witnesses is a vulgar word meaning someone who sells him- or herself for money. (The word rhymes with "floor.")

But the doctors who are eager to spread alarm about John McCain's cancer prognosis, as quoted in Saturday's Washington Post, aren't giving their opinions for money, but instead out of other motivation. So for them, I'll use the second term of art that courtroom lawyers use to describe doctors who opine without having access to either patient or full records — a term which captures the joy we take in getting to cross-examine them:


[# More #] Jurors almost always immediately grasp that, when all other things are roughly equal, the doctor who hasn't actually examined the patient cannot be trusted, at least not in comparison to the doctor who has. When the non-treating but testifying physician hasn't even seen all the relevant records and data, then it becomes obvious even to the average ditch-digger that he's just making guesses, and not particularly well-educated guesses at that.

If you read the WaPo article carefully — and not just the headline ("Questions Linger About McCain's Prognosis After Skin Cancer," which of course is biased against McCain) — then even without the assistance of a cross-examining lawyer, you'll quickly come to a confident pair of conclusions yourself:

  • There are doctors who, in giving opinions about John McCain, actually have a basis to know what they're talking about, based on first-hand examinations of the patient and complete access to his medical records and tests and pathology slides and all the other relevant data. They all present a very favorable prognosis for McCain, especially given his long period without a recurrence of the skin cancer removed in 2000.

  • And then there are doctors who are guessing, based on assumptions stacked on second-hand reports, who haven't seen the patient or had access to all his records or the other data. Their conclusions are completely untrustworthy because they can be no better or more reliable than the quality of the input, which is what they've gotten second- or third-hand and at least partly through a media filter. And of course, they have no ethical duty to the actual patient, no responsibility to counterbalance their political or other biases. So they're free to imagine the worst, and then spread it across the internet and to any newspaper reporter who'll listen.

Pinatas. To steal a phrase from the SCTV "Farm Film Report" skits, they blow up REAL good!

In fact, I'd actually pay good money simply for the opportunity to cross-examine these particular bozos esteemed physicians in front of a jury. There's nothing like the professional satisfaction of watching a supposed "expert" witness leave the courtroom with the jury actually laughing out loud at them.

Look, none of us know how many days we have left. We live in a state of uncertain and indefinite grace. McCain, at least, comes from hearty stock (look at his mother, Roberta McCain, making campaign appearances in her 90s), and he's proven himself to be, quite literally, a survivor already on many occasions. I'm amused by the line I've heard him quoted as giving to reporters who've been interviewing him in flight when they were suddenly disturbed by turbulence: "I'm just not destined to die in an air crash," he says with a laugh (having survived not only the crash of his A-4 attack plane after being shot down over Hanoi, but a couple more equipment-failure crashes and a horrible fire when his plane was hit by an accidentally fired missile on the deck of an aircraft carrier).

And as for McCain's cancer, I figure McCain's sort of like the house that Garp and his pregnant wife are inspecting in both the book and movie, The World According to Garp. As they're talking to the real estate agent, a small plane crashes into it. Immediately the very risk-averse Garp says "We'll take it!" His wife looks at him in disbelief, but he gushes, "The chances of another plane hitting this house are incredibly small!" I know that's not the way medical pronoses work, and it's just my guess. But then again, it's not much more unreasonable a guess than those being made by the doctors who are giving contrary opinions to those of McCain's own treating physicians, because those long-distance docs haven't even seen the first plane hit the house, so to speak.

— Beldar

Posted by Beldar at 06:36 AM in 2008 Election, Law (2008), McCain, Politics (2008), Trial Lawyer War Stories | Permalink


Other weblog posts, if any, whose authors have linked to Docs opining on McCains' prognosis divide into two groups: Those who know what they're talking about, and those who're guessing and sent a trackback ping are listed here:


(1) Michael Kennedy made the following comment | Oct 18, 2008 12:28:47 PM | Permalink

Bill, I've spent 30 years looking at med-mal cases and testifying in court. I've testified for both sides and have some pretty funny stories from the experience. The place where I have seen the worst examples you mention are in government drug prosecutions. In one case, a Peruvian-born physician was being prosecuted after his office had been burglarized and prescription pads stolen. After stolen prescriptions forged to request drugs were encountered, the local DEA folks sent undercover agents to his practice to try to solicit drug scripts. The whole thing was ludicrous as he had a Spanish speaking practice in downtown LA and the agents stood out like neon signs. In spite of the failure to get anything like a "smoking gun", they brought in one of the armchair commandoes you describe. He then proceeded to testify about the thousand dollar exam necessary for any prescription that defined the standard of care. I left before the end but it was apparent they were going to get the poor guy no matter what.

I've also seen lawyers lie in asking hypothetical questions. At one point, I was seriously thinking of writing a book for lawyers about how to use expert witnesses. You're probably not surprised to hear how much the quality of the lawyer determines the outcome of the case but a lot of people would.

Anyway, I have some plans to write letters to the ethics committees of those Obama supporter physicians' professional societies. It won't do any good but I'll feel better.

(2) Gregory Koster made the following comment | Oct 18, 2008 1:59:27 PM | Permalink

Dear Mr. Dyer: Outrageous, though its harder to say which party is more so, the "docs" for expressing such a quackish opinion or the press for soliciting it. Doubtless the reporters winked an nudged these hopeful media stars that sticking it to McC will only do their new careers good.

I'll stick with my perhaps too often expressed quote from Bernard Shaw:

"All professions are conspiracies against the laity."

Like to see what sort of odds these second hand docs would give on McC's living eight more years, particularly if they had to back it with their own dough.

Sincerely yours,
Gregory Koster

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