He Was Guilty

It was my first experience as an expert witness.  I was engaged by the defense to provide testimony that would help exonerate a dentist against a claim of dental malpractice.

I reviewed the case and told the defense attorney that his client stood on shaky ground.  The case hinged on the patient’s prior history of refusing periodontal care.  Unless that could be entered into the record, the defendant’s treatment couldn’t be justified.  The defendant/dentist proceeded with esthetic care and did not write that the patient was presented with periodontal treatment options and denied them.  The suit alleged that the dentist neglected to perform periodontal treatment prior to esthetic rehabilitation.

Fortunately, the patient’s previous dentist had documented the patient’s condition, the recommendation for therapy and the advice that any esthetic care be delayed until the gum issues were resolved.  The patient, not liking the advice, left that practice and sought treatment elsewhere.  I knew this case well, as I was the former treating doctor.

So, I coached the defense attorney on what questions I should be asked and which the patient should be asked.  I have to admit, I was a bit conflicted.  In this case, both parties were to blame.  But I had promised myself, believing that “there but for the grace of God go I”, I would never be a witness for the prosecution.   I’d leave that to others.

I thought the case would settle, but the prosecution wanted an absurdly large amount of money, claiming “pain and suffering”.  It was that demand that made me feel comfortable defending the dentist.  Though the cosmetic treatment should not have been done prior to periodontal therapy, the complainant had refused that care in the past.  She was complicit in the matter and that complicity should be known to the jury.

I was sworn in, sat in the box next to the judge, who proceeded to tell me that the prosecuting attorney was “also a dentist.”  It was as if the judge was impressed by that.  I found that exchange quite strange and wondered if that prejudice would be apparent to the jury.

But, the proceedings got even stranger.

I had thoroughly reviewed the case and had concluded that the defendant could have easily been found guilty.  Everything depended on how the prosecuting attorney, the former dentist, would cross examine me.

The defense asked me questions first.  And, many of them were objected to by the prosecution.  To my surprise, the judge upheld all of the objections.  Next came the cross examination.

As a witness, I could only respond to questions.  So, my opinions had to be extracted via precise questioning.  The former dentist, now attorney failed to ask me questions that could have been damaging to the defendant.  The jury would never hear what I knew to be true.  The dentist committed malpractice, even if the patient was complicit.

The next day, I got a call from the defendant’s attorney. “Why didn’t you tell us that you knew the judge?”  I said that I didn’t know him.  The attorney said that the day after I testified the judge made a statement to the jury that I was his wife’s dentist and that should not have any bearing on my testimony.

Indeed, I treated his wife but the fact that the judge was her husband never crossed my mind.  The last name was a common one in New York City.

I wonder if the fact that I was the judge’s wife’s dentist , or the poor questioning on the part of the prosecution had anything to do with the not-guilty verdict?  Either way, even though I was on the “winning” side, I was angry.

How could someone who was obviously guilty be exonerated?

I was ready to go to law school after my experience.  I realized the important role lawyers play in the system.  Thankfully, my career as a dentist was quite fulfilling and rewarding.  I thought better of the idea.  But, it did shake my confidence in the system, where the truth doesn’t always come out.  What kind of justice is that?

As you might imagine, for me, those issues surfaced last week after former President Trump’s conviction.  Could a judge have such power and sway over the jury?  Indeed, our justice system,deployed by humans, is far from perfect.

The lesson for dentists?  Stay out of the legal system.  The only ones who benefit are the lawyers and judges.  Nearly everyone else pays by either stress, time, money or all three.

Next week I’ll discuss strategies of how a dentist can avoid the legal system.

Till then, be safe.  It can be dangerous out there.

Michael