Legal column: Liar, liar

Who would you believe? A doctor or a guy who can’t get his story straight, appears to have committed perjury, and has even accused the doctor of falsifying charts? It’s a no-brainer: You believe the doctor. Not surprisingly, that’s exactly what the New Brunswick courts did. Malpractice cases occasionally boil down to the fact that someone is lying. It’s rarely the physician. In this case, the key falsehood was the patient’s claim that he told his doctor he had tripped and fallen, and had broken his fall with his wrist. He went on to argue that the doctor, upon hearing this, should have ordered an X-ray. He didn’t. Consequently there was a delay in diagnosing what turned out to be a scaphoid fracture. By the time it was operated on, it was too late: the fracture didn’t heal properly. It ended up being a “chronic non-union,” which allegedly left the patient with permanent impairment of activities requiring repetition, heavy lifting or grasping. The trial court, and subsequently the appeal court, both found that in fact the patient never mentioned the fall, so there was no reason to order an X-ray. There were several reasons, some verging on comical, as to why the court did not believe the patient. First of all, a witness’s “demeanour” in the courtroom is a time-honoured indicator of credibility, or lack thereof. In this case, said the court, the patient’s demeanour was “patronizing, defensive and self-congratulatory.” Plus, as the court politely put it, “his power of observation and recollection seemed less than acute.” The doctor, by contrast, exhibited an “impressive” demeanour on the stand, and “did not appear evasive, and was not overly certain or categoric with his testimony.” Secondly, the doctor’s chart showed that the patient never said he fell: After examining the patient, he wrote the words “no trauma.” The patient suggested that the doctor wrote this after the fact, once the lawsuit started. No, said the court. After all, the doctor had also written “no trauma” on a faxed physiotherapy requisition form, the date of which preceded the lawsuit. Also, rather embarrassingly, one of the patient’s experts put forward the weird idea that where the doctor’s chart said the patient reported a pain level of “1/10, or at best 2/10,” the handwriting was unclear, and in fact it said “7/10, or at best 8/10.” No, said the court, adding that the expert should never have advanced such an absurd idea. “Any suggestion,” the court said, “of any wrongdoing on the part of the doctor in relation to his chart notes is without merit.” Finally, there was the patient’s apparent perjury. Whenever there is a lawsuit, there is something called a “discovery,” which is a questioning done prior to the trial, and is done under oath. The court noted several discrepancies. For example, at discovery the patient testified that one of his former employers was “happy” with his performance. However, it turned out he had received three written warnings, and in fact he was on his last rope, and if he didn’t improve he would be fired. In other words, according to any accepted definition of “happy,” this would not be the appropriate term to describe the employer’s feelings. He also testified that he had undergone a physical assessment that was very demanding, and included a number of strength and cardiovascular tests. However, a technician later confirmed that he had done none of these tests. Perhaps the most bizarre discrepancy of all was that after the patient’s unsuccessful surgery, which he said resulted in his left hand being “virtually useless,” he appeared on national television preparing ingredients in a speed-based culinary competition. With the patient’s courtroom demeanour reeking of dishonesty, his baseless and ridiculous attacks on the doctor’s charting, and the fact that, even though he claimed his wrist was permanently impaired and useless, he went on TV to compete in a high-speed cooking show, it was not difficult for the court to conclude that telling the truth was not his strong suit. The court also ventured into the realm of the hypothetical, as they typically do, and posed this question: Suppose the patient had indeed informed the doctor he had fallen, and therefore the doctor was negligent in not ordering an X-ray—would this have caused damage? The answer was no. The court found that the delayed diagnosis did not cause the non-union of the fracture. On the contrary, there were several different factors at play, such as the patient’s decision to delay the surgery and work in a position that required heavy use of his wrist. This was icing on the cake, though. The main thing was that this patient was, quite literally, incredible.

Legal column: Liar, liar

Register for free access or login.

Related Topics