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Plaintiff v. Doctor, et al. (No. CIV-94-1600-T USDC WD Oklahoma)

Plaintiff v. Doctor offers a novel and effective use of expert testimony for the defense of medical malpractice cases. The defense introduced expert forensic psychiatric testimony with respect to:

1. medical decision making under conditions of uncertainty;
2. the distinction between informed consent and informed choice;
3. motivation for memory revision.

The plaintiff was a young woman suffering from chronic pelvic pain. After a period of unsuccessful attempts to control the pain with medications, the defendant obstetrician/gynecologist performed a hysterectomy.

The plaintiff's and defendant's testimony differed as to how this decision was reached and whether it reflected the plaintiff's wishes. In the course of the surgery an embryo of one month's gestation was discovered and, as a necessary consequence of the surgery, aborted.

The plaintiff subsequently brought an action for medical malpractice, charging the defendant with performing an unwanted procedure, causing an unwanted abortion, and sexual misconduct. At the request of the defense, Harold J. Bursztajn, M.D. performed a court-ordered Rule 35 examination of the plaintiff. Subsequently, the charge of sexual misconduct was dropped. However, the case went to trial on the other two charges. A unanimous jury verdict for the defense was returned.

Dr. Bursztajn testified for the defense as an expert witness in forensic psychiatry, medical decision making, and informed consent. His testimony included:

1. a constructive use of decision analysis to retrace the decision-making process engaged in by the physician and patient and thereby to counter the hindsight bias introduced by the plaintiff;
2. a forensic analysis of the informed-consent process engaged in by the physician and patient, which provided a psychological autopsy of the decision.

Specifically, Dr. Bursztajn testified:

1. that the physician and patient had appropriately considered the risks and benefits of four possible courses of action: medical treatment, psychiatric treatment, surgery, and no treatment;
2. that the patient had been competent to give informed consent and had in fact done so;
3. that the physician's actions met the standard of care in the areas of medical decision making and informed consent and were responsive to the patient's wishes as expressed at the time;
4. that a referral to a psychiatrist for psychogenic pain, which the patient in retrospect claimed to have sought, would not likely have been productive in view of the patient's defensive concealment of important aspects of her medical and personal history;
5. that, as a result of early developmental trauma, the patient had grown up feeling victimized. As a consequence, she had difficulty taking responsibility (which she equated with taking blame). Thus, although there was evidence that she had made an informed choice, she subsequently sought to disavow the choice she had made and automatically revised her memory of the informed consent process to fit her long-standing secret identity as a victim.