Medico-legal #3
The doctrine of joint and several liability: or "How deep is your pocket?"
The "Deep Pocket" theory is the common vernacular term for the doctrine of joint and several liability. Whenever there is more than one party that is determined by the court (jury) to be responsible, or liable, for the damages, it also apportions this liability. For example, if the bad result in a particular patient is partly (say, 25%) due to faulty design of a product, and partly (say, 75%) due to the failure of the surgeon using the product on the patient, both parties are responsible for the damages. If the surgeon has no liability insurance or personal assets, the manufacturer would have to pay the entire amount of the judgement. If the damage award exceeds, as another example, the amount of the limit of liability insurance coverage of the surgeon, the manufacturer would again be responsible for the entire difference, which could be a very large amount. Taking it to the extreme, if one defendant party is found to be even 1% responsible, but if all of the other defendant parties have no means to pay off the damages, the first party is responsible for the entire amount of damages.
Thus, if you have a "deep pocket", potentially every plaintiff can reach into it to collect. From a risk management standpoint, it is important for doctors to work with others who have adequate liability insurance.
Who are "the experts"?
As we mentioned earlier, the standard of care, or community standard, must be breached before any negligence can be proven. So who develops and defines this standard? The experts, of course. It is obvious in certain instances what that community standard is, but in others, especially in an inexact field such as medicine, it is difficult to define. Each side solicits opinions of someone who is experienced in the particular field of medicine and who is supportive of the their respective points of view. It is common for two doctors who are equally prominent in the field of medicine in question to have opposite opinions about a matter. The jury and the judge, who are the subject of a subsequent section, must decide which expert to believe. Every expert seems to have impressive credentials which seem to be equal, especially to those who are not familiar with the particular specialty field. So, in the end, it is the "credibility" of the expert; the way he dresses, they way he talks or walks, or general demeanor--being knowledgeable and helpful without being pedantic, using the language that a lay person can understand. Some people are just better at explaining complicated and complex principles in easy terms.
Experts are paid for their time. Hardly anyone works for no money; but, sometimes, these experts are "paid" in publicity value if the case is particularly public. Even though everyone is entitled to his "day in court", the defendants who usually have more resources than plaintiffs are able to get better experts.
Some doctors become professional experts. Their livelihood depends to a greater or lesser extent on the fees they collect for testifying in court on behalf of either defendant or plaintiffs. It has been known that some of these "hired guns" would testify with opposite opinions on the same issue depending on who is paying for his testimony. If this can be successfully presented to the court by the opposing side, his credibility would diminish to nothing in the eyes of the jury.