Chicago—As medical malpractice lawsuits have become increasingly standard fare in the United States judicial system, providing expert witness testimony has become something of a cottage industry in the medical and scientific communities. When medical professionals take the stand to provide “expert” testimony, however, they are not only representing their own reputations, but their specialty and, indeed, the entire medical profession as well. To discuss some of the issues involved when physicians take the stand, a special panel was convened bu the Triological Society at the 2006 Combined Otolaryngology Spring Meeting (COSM).
“It won’t do us any good to talk about the tort system and why it’s flawed. It is what it is and we have to live with it,” said Gerald B. Healy, MD, who served as moderator for the panel discussion. Dr. Healy is Otolaryngologist-in-Chief at Children’s Hospital in Boston, Mass., and Professor of Otology and Laryngology at Harvard Medical School. “But the issue of expert testimony is one where we can impact the system, particularly as it impacts physicians and the practice of medicine.”
The same ethical and professional standards which govern the way physicians practice medicine also follow them into the courtroom.
Medical Ethics in the Courtroom
Of utmost concern, said Dr. Healy, and a message that must be delivered to all physicians who take on the role of expert witness, is that the same ethical and professional standards which govern the way they practice medicine also follow them into the courtroom.
The American College of Surgeons (ACS) is one of the many medical associations that have strict mechanisms in place that address expert witness issues.
“If you say you are an expert witness, then you need to be one,” said panelist L.D Britt, MD, Brickhouse Professor and Chair of Surgery at Eastern Virginia Medical School in Norfolk and Chair of the ACS Central Judiciary Committee. “As an expert witness, on the plaintiff or defense side, you are ethically and legally obligated to tell the truth. If you’re going to wear the FACS brand, you must be able to defend your testimony or you could face disciplinary action, from admonition all the way to license revocation.”
Attorney Edward Hinchey, a partner at the firm of Sloan & Walsh in Boston and a specialist in malpractice defense, appreciates organizations like ACS that are taking proactive positions on expert witness testimony. Because, if they weren’t, nobody would.
“Most states have no requirements for expert witnesses, other than that they are breathing and have an opinion,” Mr. Hinchey said. Courts and states are beginning to work together, he noted, to define requirements that expert witnesses in any given case must meet and the parameters under which they are allowed to testify.
What the courts will be looking for and requiring, Mr. Hinchey said, are experts who are specifically and verifiably experienced in the medical area relevant to the particular case, are good communicators and, preferably, are locally recognized and situated.
The latter requirement is just one more aspect of malpractice litigation that puts the plaintiff at a disadvantage, according to Roger Rose, MD, an otolaryngologist in private practice in South Salem, NY, and Associate Adjunct Professor of Otolaryngology at New York University. Dr. Rose has offered expert witness testimony in numerous cases over the years, on both the plaintiff’s and defendant’s side of the courtroom. Traditionally, he said, plaintiff’s experts have tended to come from out of town, as many physicians are reluctant to testify against another physician in their community.
“Defense testimony is never a professional problem,” Dr. Rose said. “Plaintiff testimony is often another story. Can you testify against a fellow physician and maintain the respect of your colleagues and keep your career on track?”
Dr. Rose believes that the answer to that question must be “yes,” and that it is essential to the balance of justice that a patient who may have suffered from negligence or error have the same access to expert witnesses as the defense. He said more physicians need to be willing, in the name of fairness, to answer the call when a plaintiff’s attorney asks for help.
“I’m 75 years old and retired from practice, so why am I still getting plaintiff’s cases to review? Because nobody else will do it,” Dr. Rose said. “I would often prefer that more qualified doctors look at these cases, but attorneys for patients know they are working in a vacuum and I’m the only one they can get.”
An Old Problem
Concerns regarding equal access and the reliability and the responsibility of expert witnesses are nothing new, according to Sandra Shapshay, PhD, a lecturer in the Philosophy Department at the University of Indiana in Bloomington who researches and teaches in the area of biomedical ethics. She pointed out that the legal and medical professions have been wrestling with the dilemma of expert witnesses for hire since at least the late 1800s.
“And our legal system hasn’t changed much since then,” she said. “But the kinds of measures that the professional societies are beginning to put into place are a good start. Some expert witness certification programs are starting up and state licensing boards are beginning to take a serious look at this. Ultimately, though, I think the American public would be best served if we took the approach of the United Kingdom, where expert witnesses are paid by the court, not by the litigees.”
Money may not be the root of all evil when it comes to expert witness testimony, but the panelists all agreed that it is certainly a contributing factor.
“There are some surgeons out there who reportedly earn up to $750,000 a year providing whatever testimony is required,” Dr. Britt said. “Those kinds of financial stakes certainly have the potential to affect and influence expert testimony.”
Whatever the requirements and regulations imposed by the courts, the panelists also agreed that, ultimately, the responsibility for ensuring the integrity of physicians who stand up as expert witnesses is with the same societies and governing bodies that ensure the integrity of the medical profession.
“This is about giving every patient the opportunity to have an expert or every physician the opportunity to have an expert who tells the truth, who presents factual information and lets the case rest on reality,” Dr. Healy said. “We need to raise awareness and serve notice that experts who engage in unethical or unprofessional conduct will not be tolerated.”
©2006 The Triological Society