By Emmanuel Fashakin
I faced a very unusual situation in April 2019: I was asked to testify against my own patient — with the prospect of earning mega bucks!
It was a typical morning at the office in our Brooklyn location: a waiting room full of patients and all staff, from the front desk, through triage staff, to the procedure room and the biller, all working at our uttermost best to get people sorted out as soon as we could. I was seeing about my tenth patient of the morning when I heard a knock on the door: “Who is it?, come in”, I said impatiently. All my staff know that I hate being interrupted whenever I am in with a patient, because I like to focus on the task at hand, taking care of the patient, and I get very easily derailed and distracted. They are only allowed to interrupt me to show me the EKG of a patient on the table, so that the patient could be disconnected from the machine, and only for situations of life and death, like a collapse in the office. The only phone calls I take once a patient is with me is if a fellow Doctor calls regarding patient care, or from the hospital, emergency room, or Department of health. All other calls have to wait till the period in between patients.
“There is a lawyer on the phone asking to speak with you regarding a CDL patient you saw in 2017”, the medical assistant, clutching a phone in her right hand, interposed quickly, in response to my hostile glare. “A Lawyer?” “Yes, a lawyer.” That’s very unusual. A lawyer calling me for a patient seen two years earlier! If a lawyer contacts you regarding a patient you saw, that is a sign of trouble. But he would not call you. Rather he would request the patient’s medical records, go through them with a fine-toothed comb, and the next thing is you get served with the summons and complaint, which heralds the commencement of the lawsuit.
“This is Dr. Emmanuel Fashakin”, I spoke warily into the handset. “Oh Doctor, thank you for taking my call. I am an Attorney from XYZ Law Firm. I am calling you about Mr. David Simpson. We are representing a company which Mr. Simpson is suing regarding personal injuries sustained in an accident in June 2016. Mr. Simpson is suing for a significant amount of money claiming certain injuries. We are in receipt of your medical notes on Mr. Simpson when he saw you for certification as Commercial Licensed Driver in July 2017. The records show that Mr. Simpson filled out a questionnaire denying any ailments or disabilities, and your notes indicated that his examination was normal. We want you to come to court to testify that Mr. Simpson’s examination was completely normal when you examined him in July 2017. You will be well paid for coming to court to testify as an expert witness.”
My mind quickly drifted to how I could spend an extra $10,000, plus expenses and transportation, for a one-hour testimony. But I soon came to my senses. “You are asking me to come and testify against my own patient?”, I asked incredulously. I have testified many times before regarding patients I have treated, but usually on the patient’s behalf to explain their medical conditions more clearly to the court, and get cross-examined by the defense. This was the first time in my life I was being asked to testify to nail my patient — for my personal profit.
In response to my question, the female attorney asked whether Mr. Simpson had seen me before for any other medical problem and whether he was really my patient. The truth was that I saw Mr. Simpson only once, as a Commercial Driver, because I am one of the Doctors certified by the US NRCME Board to conduct medical examinations for commercial drivers in interstate commerce. However, I explained to the lawyer that even though Mr. Simpson saw me only for a specific purpose, I believed that a doctor-patient relationship existed between us.
Furthermore, I explained to the Attorney that I have caught a number of drivers telling lies on their questionnaire medical application form for CDL. Under Federal Law, a commercial driver may be certified medically fit to drive for a maximum period of two years. However, the Medical Examiner may certify the patient for One Year, Six months, Three months, or not at all, depending on the examination findings. Patients with Hypertension and Diabetes can get certified for only one year maximum, even if their conditions are well controlled. They must be on annual surveillance to ensure compliance with medical treatment. For this reason, many commercial drivers hide their medical conditions on the questionnaire so that they could be certified for the maximum two years. Unknown to the drivers, doctors are now capable of searching State pharmacy database which will reveal all the medications the patient is taking.
Ironically, just the evening before, in my Elmont office, I caught a hypertensive patient who was trying to deceive me that he had no medical condition and was not on any medications. A drug search showed that he was on treatment for high blood pressure and high cholesterol. I told him off and certified him for one year, the max time allowed for a hypertensive patient.
So, I calmly told the Attorney that the question boiled to when Mr. Simpson was lying: either to them in his lawsuit, or to me in the CDL Questionnaire and Medical examination. Even the attorney chuckled loudly at my assertion. As we said in the Law School, when learning to impeach people during trial, a novel question to ask the witness on the stand is: “Were you lying then or are you lying now in this court”? I explained that it was quite possible for Mr. Simpson to have been injured, but he lied to me so that he could be certified for two years. Patients may endure pain during their assessment. Three years ago, a man with a broken leg on crutches asked me to certify him for CDL, explaining that his fracture was almost healed! I failed him, with the explanation that he could return for re-assessment when his leg has really healed.
The attorney tried very hard to persuade me to come and testify. She said that although they have the records, it would be powerful if I could come to court and testify that the guy’s examination was normal. I considered the possibility that this guy was hurt and was just masking the pain. My testimony will destroy his case. The defender will pay me $10,000 and probably escape the $500,000 liability. I cannot do that. The attorney tried to pressurize me, even though she made clear that they could not compel me. When I disclosed to her that I am also an attorney, she was surprised and she laid off me. I told her “No, I am not coming. You can use my notes and the medical records to impeach the plaintiff at trial.” “Doctor, the medical records will not have the same effect as your testimony in court”, she pleaded with me. “No, I ain’t coming”, and with that, I thanked her for the call and hung up the phone, returning to my long-suffering patient who had sat right through the exchange.
Emmanuel O. Fashakin, M.D., FMCS(Nig), FWACS, FRCS(Ed), FAAFP, Esq.
Attorney at Law & Medical Director,
Abbydek Family Medical Practice, P.C.
Web address: http://www.abbydek.com
Cell phone: +1-347-217-6175
“Primum non nocere”
