USING THE AMA CODE OF MEDICAL ETHICS

The American Medical Association has adopted a code of medical ethics. Many of the administrative bodies of medical specialties have also adopted a code of ethics which apply to their members. Some of the codes contain provisions which can be used in cross-examining defense medical experts who are subject to the code. In some cases, the code contains provisions which make it clear that testimony on behalf of the plaintiff is discouraged. That kind of language may be useful in cross examination.  Other language may be helpful from a positive standpoint., I recommend exploring ethical rules which apply to witnesses and might be useful in examination.

As an illustration of this, I am proving a draft of an examination. On more than one occasion a client’s treating doctor refused to meet with me to discuss the patient’s care. In some cases the doctor would only do so with their lawyer present. Others have insisted they will only discuss it at a scheduled deposition. As a result, I created a deposition  preamble to be used at his or her deposition where showing bias was called for. I wanted to demonstrate the negative bias on the part of the treating doctor since the testimony would be harmful to my client. The outline is intended to simply illustrate how one could frame questions based upon a code of ethics. The actual language of the questions should be revised. This is simply an illustration.

DOCTOR – PATIENT RELATIONSHIP

  1. (NAME) Is your patient?
  2. When first became patient?
  3. Still your patient as of today?

AMA CODE OF MEDICAL ETHICS

Code of Medical Ethics Opinion 1.1.1

The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering. The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare

  1. Isn’t true that the practice of medicine is fundamentally a moral activity in caring for patients?
  2. Do you agree the relationship between a patient and physician is based on trust?
  3. Do you agree the physician has an ethical responsibility to place the patients’ welfare above the physician’s own self interest or obligation to others?
  4. Do you agree a physician has an ethical responsibility to use sound medical judgment on a patient’s behalf?

Code of Medical Ethics Opinion 1.1.3

The health and well-being of patients depends on a collaborative effort between patient and physician in a mutually respectful alliance.

Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right:

 (f) To obtain copies or summaries of their medical records….

(h) To be advised of any conflicts of interest their physician may have in respect to their care.

  1. Do you agree a physician has an ethical responsibility to advocate for their patient’s welfare?
  2. Do you agree the health and well being of patients depends upon a collaborative effort between patient and physician in a mutually respectful alliance?

Code of Medical Ethics Opinion 9.7.1

Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice. Whenever physicians serve as witnesses they must:

(a) Accurately represent their qualifications.

(b) Testify honestly.

Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount by:

  (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.

  1. Do you agree physicians, as citizens and professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice?
  2. Do you agree whenever physicians serve as witnesses they must accurately represent their qualifications?
  3. Do you agree whenever physicians serve as witnesses they must accurately represent their qualifications?
  4. Do you agree that physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount…?
  5. Do you agree that whenever physicians serve as witnesses they must deliver honest testimony by continuous self examination to ensure their testimony represents the facts of the case?

REFUSAL TO MEET

  1. You are aware I am the attorney for your patient?
  2. On (TIME FRAME) I provided you with all legally and ethically required documents authorizing you to share medical records and medical information about (NAME) with me to assist in their legal claim?
  3. Your patient requested that you cooperate with me as their attorney regarding your medical care and treatment of (him/her)
  4. You knew I was your patient’s lawyer when I contacted you?
  5. I asked to meet with you to discuss your patient’s care to assist with the legal claim?
  6. You are not being sued in the legal action, are you?
  7. However, you refused to meet with me or discuss the patient care unless legally required to do so by subpoena or legal deposition?
  8. As a result, I had to legally require you to testify here today under oath about your patient?

REASON FOR REFUSAL

  1. Did you talk to anyone about whether you should meet with me or discuss the case before you refused to do so?

(1) Who?

(2)  How many times?

(3)  What was discussed?

(4)  Why did you refuse to help your client by discussing the care with their lawyer?

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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