Two unreliable theories that some doctors and hospitals use to attack medical malpractice cases

A significant benefit that clients get when they hire an experienced medical malpractice attorney is the know-how to tackle the significant “home team” advantages that doctors and hospitals are extended by the medical community.

While, for many years, I have exclusively devoted my practice to filing medical malpractice and wrongful death lawsuits on behalf of patients and their families, I have seen the “home team” advantage first-hand from the other side of the aisle. I began my legal career working at a large law firm, where I defended hospitals, medical schools, doctors, and other healthcare providers in medical negligence claims. Before that, I was a hospital administrator.

From that experience, I know that when doctors and hospitals are sued by patients, it is almost universally easy for them to find local medical and nursing experts that will testify that they did nothing wrong. Quite often, they just go down the hallway or across the street and ask a colleague to help them out.

When it comes to injured patients, though, it is very different. Texas law requires medical negligence plaintiffs to have the testimony of medical experts to back up their claims. Yet, most plaintiffs have to go outside Texas, or at least out-of-town, to find any doctor or nurse who is even willing to review a case or medical records on behalf of a plaintiff. Many of them will readily admit that they do not want to face a potentially awkward moment of running into a doctor or nurse they have testified against. Therefore, they refuse to testify in all plaintiffs’ cases, regardless of their merit.

In every medical malpractice case there are at least two sets of experts presented. Plaintiffs’ medical experts will testify that the defendant healthcare providers did not meet the applicable standards of care, while the defense medical experts will say that the doctors, hospitals, and nurses provided excellent care. The trial court has a gatekeeper role to ensure that medical expert testimony is scientifically reliable.

Some defendants have tried to enhance their odds, even beyond their “home team” advantage through the circle-the-wagons support of the medical community, by trying to use scientifically-questionable testimony from so-called expert witnesses. As a Houston, Texas medical malpractice attorney, I have seen this in two particular areas:  life expectancy and hindsight bias.

Life expectancy

When patients are seriously injured as a result of medical malpractice, they will often require lifelong care. I have filed lawsuits with plaintiffs of different ages where this is the case. For example, I have handled cases where a baby was born with permanent brain injuries, like cerebral palsy, as a result of poor labor and delivery care. In another case, I represented the family of a teenager who was a good student and athlete, but was rendered to a near-vegetative state because hospital nurses did not communicate critical lab values to any doctors. I have also represented elderly clients who can no longer walk or handle daily activities because of medication errors.

In these types of cases, is it is easy to see how costly medical, nursing, and home health care would be necessary to help these injured patients. Under Texas tort reform laws, these costs are not capped. Therefore, some defendants have resorted to other methods to try to reduce the amount of money that a jury might award for future care. One of these methods is to attack the plaintiff’s life expectancy.

Generally speaking, U.S. government and other professional publications contain data that can be used to determine a person’s life expectancy. While no one can predict with certainty how long a person will live, these resources control for current age, gender, and race, and use statistics to predict how many additional years a person is expected to live.

When someone is injured as a result of medical negligence, there may or may not be an impairment of life expectancy. Texas courts require a licensed medical doctor to provide expert testimony as to diminished life expectancy. After all, only a physician would have the expertise to form a reliable opinion as to how a medical condition could influence life expectancy.

Some defendants have attempted to skirt these long-standing legal standards by offering the testimony of non-medical experts, who use statistical analysis. I encountered one such expert several years ago in a case involving a pediatric patient who is left with a brain injury as a result of hospital malpractice.

The defendant hospital offered as an expert witness a man with a Ph.D. in statistics. The proposed defense expert witness had no medical training and was not a licensed physician. That did not stop him, though, from writing an 11-page report that cherry-picked different items from the patient’s medical records, which he then attempted to use in a statistical model.

As you might imagine, he concluded that this young patient had a dramatically-reduced life expectancy as a result of her injuries.

Attorneys who are unfamiliar with medical malpractice cases may have been caught off-guard by this type of concocted defense testimony. Based on our experience in handling cases like this, Painter Law Firm attorneys vigorously challenged the reliability of his opinions. Although the case settled shortly before trial, we believe that the court would likely have struck his opinion.

Hindsight bias

Hindsight bias is another wobbly theory that some defendants have tried to get in front of juries by offering testimony of proposed Ph.D. experts. We have all heard the saying that hindsight is 20/20, which is hindsight bias in a nutshell.

Some individuals with Ph.D. degrees hold themselves out as experts in hindsight bias and medical malpractice. In short, they believe that no one is competent to review health care provided by a doctor or nurse, because they were not present at the time that the care was provided.

These so-called Ph.D. experts believe that medical expert witnesses overestimate the likelihood that they or anyone else would have provided appropriate care, or made the appropriate diagnosis, under the same factual circumstances at issue in the case.

In my opinion, this is a rather strange defense theory, in that courts are the ones that imposed the legal standard requiring medical expert testimony in the first place. Under Texas law, plaintiffs must present the testimony of a medical expert (licensed physician) concerning the applicable standards of care and how the defendant doctor, hospital, or nurse did not meet the standards and caused harm.

It is easy to see the true motivation of some defendants here. If trial courts abide into this defense idea that hindsight bias is a universally-fatal problem that makes expert testimony unreliable, then all doctors, nurses, and hospitals could never be held accountable for their care.

When we encounter this type of defense theory, we argue to the trial court that it is a part of any physician’s job description to competent to make a diagnosis, foresee complications, and take reasonable measures to prevent those complications. Having expert witnesses review the care is not a question of hindsight, is one of negligence.

We are here to help

As experienced Houston, Texas medical malpractice lawyers, Painter Law Firm keeps current on strategies and techniques used by defendants, and how to protect our clients’ from phony science.

If you or someone you care for has been seriously injured as a result of medical negligence, I believe your best bet is to hire an attorney who regularly handles these types of cases. You can reach us at 281-580-8800, for a free consultation about your potential case.


Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He files medical malpractice and wrongful death lawsuits on behalf of patients and their families.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.