Telling a Flat-out Lie on the Witness Stand

A South Dakota surgeon recently admitted, in a controversial article, that he deliberately lied under oath 15 years ago during a malpractice trial to protect one of his partners.

Lars Aanning, MD, now 77 and retired, said his conscience bothered him ever since. He was called as a defense witness for a partner whose patient had suffered a stroke and permanent disability after an operation.

While on the witness stand, Aanning was asked whether he knew of any time when his partner’s work had been substandard. Despite having misgivings about his colleague’s skills and knowing that patients had suffered injuries related to his procedures, Aanning testified, “No, never.”

A jury found for his partner, although Aanning said he doesn’t know whether his testimony was the deciding factor, as he wrote in an op-ed in the Yankton (SD) County Observer. He also posted the article in the ProPublica Patient Safety Facebook Group and granted an interview to NPR radio.^[1]

“I… accepted the defense mantra that no negligence or break of ‘standard of care’ had occurred, and that the surgeon had ‘done everything right,'” said Aanning, who now works for plaintiffs’ attorneys in medical malpractice cases. “I wasn’t going to be a squealer—fat chance!

“But… I knew I had lied under oath and violated all of my pledges of professionalism that came with the Doctor of Medicine degree and membership in the AMA. I had prostituted myself to the loyalty demanded of me by the clinic and my colleagues.

“In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other,” he wrote. “Breaching that trust would brand that colleague a whistleblower, a virtual has-been, and permanently mark him as a betrayer—with retirement or relocation the only viable outcomes.”

Why Confess Now?

Aanning said he wrote the article because he’s now retired and “they can’t hurt me. I can’t go to the clinic for any help. All of my doctors are out of town.”

He believes “the courtroom is not the arena for adjudication of medical right or wrong. … There’s got to be a different way to help people who have been medically harmed. Looking to the legal system is like mixing oil and water.”

Reaction to his story within the medicolegal community was swift, with both supporters and detractors.

Gerald B. Hickson, MD, senior vice president for Quality, Safety and Risk Prevention at Vanderbilt University School of Medicine in Nashville, told Medscape, “Without more clinical details, it’s hard to tell whether the care provided was good, bad, or indifferent. So we don’t know whether justice prevailed or not.”

But Hickson disagrees with the surgeon’s view that testimony from a doctor’s colleagues cannot be trusted. “My view is that the vast majority of doctors are professional and honest,” he said. “But we must recognize that the judicial process is what it is and sometimes people don’t tell the truth. The legal process to resolve these disputes doesn’t always bring out the best in us. Human beings have a whole host of motivations.

“The surgeon’s article unfortunately plays to the cynicism in society,” he adds. “I believe there is more willingness in medicine today to do the right thing at the right time,” he adds. “When a mistake is made, there should be full disclosure and apology, and an early settlement offer when we’ve made errors. That will get more of these cases out of the courtroom.”

James Lewis Griffith Sr., a malpractice attorney in Blue Bell, Pennsylvania, who has represented both physicians and plaintiffs, said Aanning is correct that physicians who testify against colleagues are at great professional risk. “Those physicians are considered traitors, are shunned … and face a potential loss of income.

“Too many doctors lie to protect their pockets and have no concern for the damage caused to patients by their failure to police the profession,” he said. “I have no expectation about this problem being seriously addressed. I know patients who have filed a malpractice claim and then could not get treatment from other physicians in the same county.

“Isn’t it strange that physicians can support claims against a religious organization for not exposing a child-abusing member of the clergy but have a totally different standard when it comes to their decision to shield a fellow doctor?” he asks. “They find it totally acceptable to conceal wrongdoing when their referral business could be jeopardized.”

Some Say Lying at Trial Is Not so Unusual

Rick Boothman, chief risk officer at the University of Michigan Health System and a malpractice defense attorney, has a different view of Aanning’s article. “Someone lied on the witness stand? That’s hardly news,” he said.

“I have no reason to believe that this is more or less prevalent than the general level of integrity from the witness stand in any kind of litigation,” said Boothman. “Hidden agendas, deliberate falsehood, selective recollections, biases, testimony for personal gain, and assumptions are all part of the human experience. This isn’t unique to cases involving medicine.

“Matters of opinion can’t easily be tested or double-checked as you can with testimony relating to hard facts, for which there may be collateral evidence,” he said. “Opinions are opinions that can be affected by lots of things, including the passage of time. How can we know that this surgeon is telling the truth now?”

No malpractice insurer should tolerate witnesses who give untruthful testimony, said Mark Fogg, general counsel to COPIC, a Colorado-based liability carrier.

“It is always our expectation that witnesses will testify professionally and truthfully in accordance with the oath they take as witnesses,” he said. “Medical care is complex, and circumstances often vary widely between cases. When subsequent treating physicians consider providing opinions beyond their own care, case evaluations should be based on a review of all the pertinent records, data, and other information.”

Aanning, who is now a patient safety advocate, said he didn’t feel better or worse after “coming clean” with his admission, but he had been haunted by his testimony ever since it happened.