In this episode…

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 guest Dr. Stephen 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.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Stephen Cohen, Section Chief of General Surgery at the VA

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and today, I’m excited to welcome Dr. Stephen Cohen to the show. Dr. Cohen is the Section Chief of General Surgery at the Veterans Administration (VA), Associate Professor of Surgery at VCU Health, and a consulting expert with over three decades of experience. He is a board-certified surgeon with a MD from UCLA and an MBA from Walden University. Dr. Cohen, thank you for joining me on Engaging Experts.

Dr. Stephen Cohen: Thank you. I’m excited and happy to be here today.

Noah Bolmer: You’ve made a career in medicine and teaching, but how did you first become involved in expert witnessing?

Dr. Stephen Cohen: That’s an interesting question. When I was a third-year surgery resident at Boston University, 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 a gunshot wound in the head was brain matter. I thought that was cool because medicine and law are two different worlds completely. When I finished my training and started practice in Atlanta in 1994, my senior partner said, “By the way, are you interested in reviewing a case because I’m too busy?” I didn’t know what that meant but I said, “Sure.” He said, “You get paid for it.” Okay. That’s really how it started. I looked at the medical legal world. What I do now is very similar to my doctor hat. Not only am I taking care of patients and currently taking care of veterans, but teaching, training, and educating medical students and residents. A well-rounded, successful, and competent expert witness has to be able to teach medicine to juries, attorneys, and courts because none of those groups know medicine. I don’t know the law, for sure, but nobody else knows medicine other than those doing it on a day-to-day basis.

Noah Bolmer: You have been doing this for quite a while. Have you seen any significant changes, vis-vis expert witnessing in general?

Dr. Stephen Cohen: One thing that has changed is how we review charts because 30 years ago, we were all looking at handwritten charts and I will tell you the one benefit I see of the electronic medical record is that nobody complains about Dr. Cohen’s handwriting. That certainly has been a big change. The volume of data that we have to go through now on a relatively simple case to opine on whether it was a standard of care or what the causation was, is overwhelming. The average number of documents I have to look at now is 6,000 – 7,000 pages of records and when you have an electronic medical record, half of  it is duplication, and the other 30% doesn’t mean anything. Probably 20% of those records are progress notes, daily vital signs, laboratory work, and diagnostic imaging. What was going on with the patient? Where the decisions were being made. That certainly has been the biggest factor in terms of how we review charts.

Noah Bolmer: I used to work with electronic medical records (EMRs) myself and they ranged from terrible to almost usable. Would you say that technology has assisted or has made your life more difficult?

Dr. Stephen Cohen: Definitely more difficult. Thirty years ago, everything in the chart was handwritten, the volume of documents that we are now asked to review is an average of 5,000 to 8,000 pages of electronic medical records. Maybe 30% of that is useful to me. Much of it is duplication. There are many things that are not significant when I’m looking at [whether] a provider met the standard of care and whether that complication caused any harm. It definitely takes me more time to get through the chart for sure but the other thing that’s been interesting and I didn’t use 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. When I get a call from an attorney- many legal nurses work now for attorneys. They go through the 20,000 pages, pull out the progress notes and operative notes, and tell me where the vital signs are because a lot of times on the doctor’s progress note, I can’t find the vital signs. I have to find them on page 11,332 and make sure they are on the same day. It’s time-consuming, it’s costly for attorneys, obviously, and it’s a challenge.

Noah Bolmer:  Do those consultants come out of your cut or do they get billed separately by the engaging attorney?

Dr. Stephen Cohen: It depends. Half the time, it’s not the attorney [who] reaches out to me to talk about a case. It’s a legal nurse consultant. I just got off the phone with one this morning. I’m working with an attorney and he sent me the records. Sometimes, attorneys have an in-house legal nurse consultant who works for them doing some of that work. Some attorneys are looking for an expert and reach out to a legal nurse consultant and say, “I need a chronology. It’s a confusing case. I’m not even sure if it’s a case.” The nurse consultant will do the initial assessment and say, “I think it’s a case. I have a good expert for you.” Then they hook us together. That makes my job much easier. If I have an attorney who sends me 20,000 pages, I let them choose what they want to do. I say, “Obviously, it’s going to cost you a lot more because I have a higher hourly rate, than if you have a legal nurse consultant.” It depends on the attorney.

Noah Bolmer:  Are you typically inundated with superfluous material if they don’t have an on-staff consultant? Do you get 2,000 pages of medical records and [are] expected to review the entire thing? Is that the general expectation?

Dr. Stephen Cohen: It’s interesting because I talked to an attorney this morning who said, “There are a lot of records. Do you want me to send you just the pertinent ones?” My answer was, “How do you know what’s pertinent?” I always tell them I want all of the documents. Let me decide what’s pertinent and what’s not. If it’s pertinent, I can go through it quicker than they can because I do about 50% plaintiff and 50% defense. The reason I say that it doesn’t matter what side I’m on is that during my deposition the other side will always say things like, “You’re just a hired gun.” You can’t tell me that on both sides. Come on, right? Or, “Dr. Cohen, you’re making this decision without seeing all the records. Is that fair for my Dr.?” 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 and caused the patient’s death.” So, it’s very important for the expert witness to decide what’s pertinent and what’s not pertinent because if I allow the attorney to do that, it’s not 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.

Noah Bolmer: Do you have to pour through these records prior to accepting an engagement to see whether or not you can, in fact, help them?

Dr. Stephen Cohen: 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.

Noah Bolmer: Right.

Dr. Stephen Cohen: Most expert witnesses, including myself, ask for a retainer because I know I’m going to spend 3,4, 5, or 6 hours, whatever it is, to go through everything. Having said that, about 35 to 40% of the time, I review maybe about four to five cases a month at this point-

Noah Bolmer: Sure.

Dr. Stephen Cohen: -when I get asked to review a case from a plaintiff attorney 35 to 40% of the time, I tell the plaintive attorney, “Unfortunately, this is a known complication, and there was no breach in the standard of care.”

Noah Bolmer: Wow.

Dr. Stephen Cohen: They know not every plaintiff attorney who takes a case is going to get a positive review but again, I’m not getting most expert witnesses. We’re not getting paid for the answer; we’re getting paid for the time we spend going through the chart to give the answer. Most credible attorneys on the plaintiff’s side want an honest answer. They need to know that this a case that’s winnable in trial. Was there truly a breach in the standard of care? More likely than not. 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, permanent colostomy, or other catastrophic events. Honesty definitely is the best, and that’s how every expert witness should approach any case that they look at.

Noah Bolmer: Do you work for many insurance companies on these cases? I would imagine particularly on the defense side.

Dr. Stephen Cohen: The insurance company hires- I’m not sure exactly how it works, but they have their defense attorneys reach out to experts like myself to help defend them.

Noah Bolmer: Sure.

Dr. Stephen Cohen: I’m working on behalf of the attorney who hired me for the insurance company.

Noah Bolmer: I see. 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?

 

Dr. Stephen Cohen: No, it doesn’t. The medicine is medicine, and I’ll tell you it’s funny the way you ask that question. There are times because I’m an idiot- 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, but I don’t know the hospital or that issue. It may take 1,2,3, or 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. 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 sometimes don’t remember whether it’s a defense or a plaintiff case, and it doesn’t matter who hired me. I’m looking at the case, and I’m going to give you the answer.

On more than one occasion, I’ve talked to an attorney and thought they were an attorney for the plaintiff. I said, to the attorney, “Look, there was a correct indication for surgery. I read the operative note. They did the right procedure. They checked the anastomosis. They did an air leak test. It looked good. I looked at the post-op day one, and the patient was doing fine. Post-op day two, the patient was 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 breached. I can’t help you.” The attorney then said, “Actually, this is a defense case.”

Noah Bolmer: Right.

Dr. Stephen Cohen: Then, I go, “That’s good because that’s easy to defend, so it doesn’t matter what the attorney is.” What I tell people is I don’t know what they think because I don’t look at this case in hindsight, but I always get accused of looking at the case in hindsight, whether it’s a plaintiff case or a defense case. Again, you can’t have it both ways. I look at it like I’m the practitioner-

Noah Bolmer: Right.

Dr. Stephen Cohen: -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 and the imaging. What would a reasonable, prudent physician do under similar circumstances?

Noah Bolmer: At the end of the day, it seems at the times that you don’t remember it. It would just be a testament to proper expert witness neutrality, which, at the end of the day, the expert witness’s duty is to the neutral truth not the end client, like the attorney’s is. I’d like to ask you a little bit about your preparation methods. When you’re getting ready for a deposition, for instance, or even an examination, what sort of things do you like to do to prepare yourself for what can be difficult, getting peppered with questions and getting impeached by the other side?

Dr. Stephen Cohen: That’s a great question. I will tell you that I have learned a lot in the last 30 years [because] 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 a deposition is to have that chart memorized. I want to know the dates and the times. I want to know the names of the nurses and the 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 usually spend a lot of time. I’ll only do depositions on Wednesdays. I don’t do more than one a week and if I can help it, I try not to do more than one or two a month. The weekend before, I go through every single document again to make sure I have the case memorized. There is an app on my iPad called Notability where I can take notes, screenshot things, and highlight factual [elements] of the case that I can reference because the other side always wants to make it a memory test. If you want to make it a memory test, I’ve memorized it so, bring it on.

Early in my career, I didn’t take depositions as seriously as an expert witness should. I know that sounds silly, but most expert physicians who do this kind of work have another job. This is not my main job. I’m still a full-time colorectal surgeon. I’m a section chief, and I have thirty people that report to me. I do a bunch of other things. This is what I do in addition to my daily job, but when I put my expert witness hat on, I have a duty either to the attorney who has a client who was harmed or to a physician whom I’m trying to defend. It’s like my analogy is- 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 that the actors are tired? Of course. You demand a good- you want a good performance, right? So, I really feel like that. 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 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. Now a year goes by when I’ve done every- now, next month, we want to do a deposition, OK. I have go back to square one. So that’s the most important thing. And that that’s what separates some expert you know, seasoned experts from non-seasoned experts. One of the criticisms I always get, no matter what side I’m on, “Dr. Cohen, you do this a lot, right?” They criticize me for doing a lot of cases. But do you want the airline pilot on his first day of flying, or do you want the seasoned airline pilot?

Noah Bolmer: Right.

Dr. Stephen Cohen: What do you want? I think my previous mistakes have helped me, and the fact that going 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.

Noah Bolmer: Absolutely. 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 make sure that you get paid in case it goes to settlement? One thing that I haven’t asked a lot of experts about, but I’d like to start doing is travel expenses, especially if you have to go to a venue in another state, for instance.

Dr. Stephen Cohen: I actually have a retention contract and again, I didn’t do this in the past. This is one of the things I learned because early in my career, I just had a fee schedule [that said] here’s my retainer fee. Here’s my hourly charge. Nothing was written down and nobody signed anything. I have been burned in the past spending time reviewing charts, giving opinions, and not getting paid. A contract attorney helped me come up with a contract that spelled out the duties.

Noah Bolmer: Sure.

Dr. Stephen Cohen: Here are my fees and expectations. Here’s my late fee. Here are what my duties are and what your duties are. Obviously, most attorneys know about contracts because they’re attorneys, but even with having that, I 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. It was the craziest thing ever. He wound up losing. I mean, come on. 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. Contracts are important for listing expectations and building in travel expenses if I have to go to trial.  Obviously, trials are not as common. If you look at all the 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, I do one to two trials every one to two years. It’s not that often [because] most cases settle.

The way I handle travel is [my] expenses are paid by the hiring attorney to fly me out and stay in a hotel. I don’t eat much. I’m usually in my fasting stage so I don’t eat, and that saves everybody money. Usually, the side that retains me will pay for travel. Now, that was before COVID. Since COVID, many courts in lots of jurisdictions across the country are letting me do live Zoom videos in the courtroom. 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. 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 was at a trial a few months ago and getting off the stand, drawing pictures of the colon. It’s much better; there’s no doubt, but most times, the hiring attorney pays for travel.

Noah Bolmer: Are those travel expenses reimbursed, or are they paid upfront? Then, the follow-up to that is when you are Zooming in, tell me about connecting with the jury, and managing demeanor using telepresence.

Dr. Stephen Cohen: That is definitely a challenge. Normally, travel expenses are billed afterward. The reason is because-

Noah Bolmer: Got you.

Dr. Stephen Cohen: -last year, they wanted me to fly in on Tuesday, which I did in the evening, to testify on Wednesday. Then, I was going to leave Wednesday night to go back home. What do you think happened? On Wednesday, they couldn’t get me on the court, and I had to stay a full day the next day. Then, I couldn’t get out that night and had to stay until Friday. All the travel has to be billed afterward because the attorneys don’t have any control over the order, how long it takes to pick the jury, and the judge wanting to take a break. Other things are going on. It’s a challenge.

Noah Bolmer: Regarding zooming in or telepresence and connecting with the jury.

Dr. Stephen Cohen: That’s a challenge for sure. In one instance, I didn’t know that they could see me, but I was talking to the attorney, and they could see me on the screen.

Noah Bolmer: Right.

Dr. Stephen Cohen: I was talking to the camera, but the problem is I will play off the body language and the subtleties that you get when you’re in person, but you can’t do that on Zoom. I can’t see them. So I talk like I’m teaching students. I 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.” On Zoom, I can go crazy, so it’s a challenge, but it can be done. It’s up to the attorney to make sure that they ask the questions and get the responses they want to make their case whatever side they’re on.

Noah Bolmer: One thing you mentioned is drawing. Do you like to use a lot of demonstratives when you are on the stand or in depositions even in expert witness reports? You like using charts, graphs, drawings, and other things like that.

Dr. Stephen Cohen: Most people are visual learners, including me. That’s why I use visuals at trial.

Noah Bolmer: Okay.

Dr. Stephen Cohen: It’s hard for me to show you what a hemorrhoid looks like or what the colon looks like. Remember, jury members don’t have any medical experience. They have no idea what I’m talking about. I’ve taught first and second-year medical students in the past. You have to be careful when you say bowel resection. The residents know what that is because they’ve been doing it. First-year medical students don’t know when I say bowel resection that I cut out part of the large intestine or the colon and put the two ends back together. You have to change how you say it. When I use visuals at trial, 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. At deposition, I don’t normally do that. 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 what I mean.” It’s difficult for me to explain what the CAT scan showed without me showing you.” On Zoom, it’s impossible, but I did do it the last time on Zoom, I was able to draw and share it on my computer, and it worked great.

Noah Bolmer: So, you found a way around it.

Dr. Stephen Cohen: Right. On Zoom you can share your screen. We practiced ahead of time. I pulled up my screen to get that imaging. I could take my pen and draw the colon. It worked fantastic.

Noah Bolmer: Do you ever have outside help preparing demonstratives, or is it something that you typically do in real time?

Dr. Stephen Cohen: It depends on the attorney. Many times, the attorney will say, “We’re going to get somebody to draw images of the gallbladder, images of the colon, what happened, or what an ileostomy is. We’ll send them to you ahead of time and you tell us what you want, and we’ll use those.” The attorney will do that if they want or I tell them I can draw it. There are some very powerful companies I’ve seen out there that do some fantastic work on medical illustrations and 3D imaging. Most people, myself included, are visual learners, and if you don’t know anything about medicine, having a diagram, a picture, or 3D imaging is a powerful visual to understand medicine.

Noah Bolmer: One thing you mentioned is that you only need 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. How is it managing expectations in terms of what you’re going to make for a particular case where there’s a high likelihood that it’s going to settle? How do you build that in?

Dr. Stephen Cohen: I’ve never been asked that. I don’t build in my fee for what I do. I still make a lot of money being a doctor, so that’s my main source of income.

Noah Bolmer: Of course.

Dr. Stephen Cohen: Anything I do, medical-legal work or other reviews is just extra work that I do outside of being a doctor.

Noah Bolmer: Got you.

Dr. Stephen Cohen: I get asked this a lot. My annual income from expert work is less than 20% of my total income anyway.

Noah Bolmer: Sure.

Dr. Stephen Cohen: In terms of a business model, I’m not looking at it as a business model per se. I’ve always been a big believer in multiple streams of income, and I’ve taught that to the residents.

Noah Bolmer: Right.

Dr. Stephen Cohen: My mom tells a funny story about one summer when I was in high school. I was sixteen and had four different part-time jobs. I’m wired differently than everybody else. I’ve always had more than one stream of income. I tell the residents and my kids the best time to look for a job is when you already have one don’t wait until you get fired or quit. You should always have something. At one point in private practice, believe it or not, I had seven different streams of income. I was doing some medical-legal work. I was involved in industry, teaching, training, and educating other surgeons on innovative, new colorectal procedures or products that are currently used in practice today. There’s an anti-adhesive barrier that we now use in surgery. They were just coming out, and I was one of the original clinical instructors on how to use that product and give my data. I’ve always been involved in extra things.

 

Noah Bolmer: I’d like to shift gears for a moment. Are there any cases that come to mind that served as 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?

Dr. Stephen Cohen: That’s a great question. I was doing a case in Georgia and was 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 repaired the sphincter muscle, but because it was such a devastating injury, they 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. We called in his general surgery friend because they did the colorectal part. The general surgeon did the laparoscopic colostomy and stapled off what he thought was the distal end. Post-op days three, four, and five the patient’s belly started to get bigger and bigger. No action at the colostomy. They put a scope in what they thought was the proximal part of the bowel, and it came out of 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, and there was stool. The patient wound up surviving but needed six more operations and a permanent colostomy.

I was on the plaintive side, opining that bringing up the wrong end of the colon is a breach of the standard of care. I thought that was a pretty simple one, right? But during my testimony, they brought up the surgeon’s operative notes and they were reading every single word out loud. The aha moment to me, and this was early in my career, was that anything you put in a chart may be blown up someday for a jury to read. I never thought of it like that, and I teach the residents that whatever you put down on paper or in the electronic medical record, there may be an attorney or a jury looking at what you writing someday. Why is that important? I’ve done many 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 put it down in writing, you may as well just write the check. That was an eye-opening experience.

Noah Bolmer: Wow, that is quite the experience. How long ago was that?

Dr. Stephen Cohen: It was in the 1990s.

Noah Bolmer: Another thing I’d like to ask you is 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.

Dr. Stephen Cohen: That’s a great question. For me personally, this is an interesting story. Let’s go back to how I prepare for a deposition. If I do well in the deposition, I have memorized the chart dates, times, and what happened; and are clear on the science, I can back it up with either literature, education, experience, or training. If I do my job right, even the other side who doesn’t like what I’m saying gets it and will either drop or settle the case. There have been a handful of times that attorneys who were on the other side have reached out to me and said, “You were on the other side 10 years ago and during your deposition, we realized that we were in trouble. That we couldn’t win or had to settle this case. We knew at some point we were going to reach out to you to help us.” There’s the answer. Even though the other side doesn’t like you and will do everything they can to discredit you, if they turn around and use you to help their case, I think that’s the mark of a good expert witness. There’s no other way I can grade that.

Noah Bolmer: Before we wrap up, do you have any last advice for expert witnesses, particularly newer expert witnesses or even attorneys working with expert witnesses?

Dr. Stephen Cohen: There are a lot of physicians who don’t think what I do is a good thing. I get a lot of pushback from my own friends or thought they were my friends. “How could you talk to a plaintiff’s attorney? That’s terrible.” There are a couple of reasons for that. Number one is to remember that 30 to 40% of the time I tell a plaintive attorney they don’t have a case, and they don’t sue the doctor. How many times in my career have I prevented a physician or provider from getting sued?

Noah Bolmer: Good point.

Dr. Stephen Cohen: Many times. The other thing I tell attorneys, and everybody thinks I’m crazy, but if I have to tell a plaintive attorney like I did this morning that you don’t have a case, I always say I am happy to talk to the patient, if they survived, or a family member, because I’m not emotionally involved with this case. Everybody’s emotionally involved, except me, the expert witness. Just looking at the chart, I don’t know the details. I’m just looking at the records. I frequently get on the phone with a client or the husband of a patient who has passed away, which I did recently. I have explained why there was no malpractice. Sometimes they don’t like the answer, but the benefit of doing this work is I prevent a lot of physicians from going down the path of getting sued. That’s the number one thing.

The second thing is that being an expert witness has made me a better doctor. Why is that? I have to keep up with medicine. Well, you say, don’t you 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?

Noah Bolmer: Right.

Dr. Stephen Cohen:  I recently reviewed a case of a hemophiliac patient who underwent surgery and died of bleeding. I’ve taken care of hemophiliac patients, but the guidelines have changed. What is the indication for surgery? What are the new guidelines for how you manage a patient with hemophilia? Medicine is constantly changing. How I did medicine and surgery in the 1990s or 1980s when I started training is not even close to the way we do it now. 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 and things like that. They are the nuances, and when you get deep in the weeds of opining on a case is what you have to do to make your case that somebody either breached or did not breach the standard of care. It makes me a better doctor. That’s the second thing.

What I would tell new expert witnesses is you have to take this job seriously. This is not a part-time job, where 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 the defense attorney. You can’t just do one side. That does not make you credible for sure. During a deposition, if you’re going to talk to a plaintiff’s attorney, you have to sit across the room: if you’re doing it in person, which we did mostly before COVID. Pretend like you’re sitting six feet away from a colleague who is board-certified, just like the one who trained you in your specialty and has decades of experience. 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.

Noah Bolmer: Wow. 

Dr. Stephen Cohen:  I’ve had to do that. Is it intimidating? It was 30 years ago but not anymore. I have had to sit across the room, as many expert witnesses do, and look at a surgeon who’s trained and who has been in practice longer than me and explain why he breached the standard of care.

Noah Bolmer: That sounds intense.

Dr. Stephen Cohen:  When my residents come up and want to get in, and I tell them that, half of them say, “I’m not doing that.”

Noah Bolmer: Better to know before you get into it. Dr. Cohen, thank you for joining me today.

Dr. Stephen Cohen:  I appreciate it. Thank you for the opportunity.

Noah Bolmer: And thank you to our listeners for joining us for another episode of Engaging Experts. Cheers.

Stephen M. Cohen, MD, MBA

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.