Book Review

Doctors and the Law: Defendants and Expert Witnesses

N Engl J Med 1994; 330:296January 27, 1994

Article

Doctors and the Law: Defendants and Expert Witnesses
By Hiller B. Zobel and Stephen N. Rous. 208 pp. New York, W.W. Norton, 1993. $22.95. ISBN: 0-393-03450-X

Most physicians strongly dislike medical-malpractice litigation. The idea that they or their colleagues might be sued for injuring someone because of substandard care is repugnant. The litigation process is time-consuming and, more important, emotionally trying. Perhaps some of the emotional trauma that physicians experience could be relieved if they were better informed about the nature of the legal process in malpractice litigation. Unfortunately, until now there has been no reasonable description of that process available to physicians.

Zobel and Rous's book Doctors and the Law fills this gap admirably. It provides an orientation to malpractice litigation not only for physicians who have been sued but also for those who may act as expert witnesses. The authors realize that physicians may be fearful and are certainly not well informed, even by their own lawyers. Doctors and the Law puts the litigation process in perspective, emphasizing its advantages as well as its deficiencies in a clear prose style that is highlighted by an entertaining and clever wit. The authors are especially fond of quoting aphorisms by jurists and others (in one paragraph that I particularly enjoyed, they cite both Hotspur in Shakespeare's Henry IV and Yogi Berra).

The authors know their audience and often return to medical examples to clarify points. For example, they characterize the medical diagnostic process as a series of steps that result in a conclusion. In contrast, the lawyer starts with a conclusion, and the steps in the litigation process are intended to put that conclusion in the best possible light for the benefit of the litigant. This is an insightful characterization of the differences between the legal and medical processes.

This book is not only for physicians who have been sued or who may serve as expert witnesses. A broader audience will appreciate the manner in which the authors explain the legal process and demonstrate the rationale for the various proceedings that doctors find so confusing. As a judge, Hiller Zobel is well acquainted with the logic of the litigation process, and his knowledge shows through clearly here. By demonstrating how the litigation process is in many ways well conceived, this book should give pause to physicians who would otherwise be inclined simply to bash lawyers.

None of this is intended to minimize the book's usefulness for physicians who have been sued. There is a series of pointed lessons for doctors about appropriate behavior throughout a lawsuit. The authors also have firm advice for physicians who plan to testify as experts. The aim is to improve judicial decision making by improving expert testimony -- a laudable goal. In summary, Doctors and the Law is both a helpful guide for physicians who have been sued and an entertaining yet cogent overview of malpractice litigation. Most physicians -- whether or not they have been sued -- will profit greatly by reading it.

Troyen A. Brennan, M.D., J.D.
Harvard School of Public Health, Boston, MA 02115