Halting inappropriate expert witness testimony – Part I: Professional associations' efforts to police 'experts'

by Robert A. Bitterman, MD, JD, FACEP, Contributing Editor

Introduction

Physicians believe that most medical malpractice lawsuits are without merit. Even President George Bush in his 2004 State of the Union address stated that Congress needed to "eliminate wasteful and frivolous medical lawsuits in order to protect the doctor-patient relationship and keep good doctors doing good work." In fact, between 60% and 80% of all medical malpractice claims filed against physicians end with absolutely no payment to the plaintiffs or their attorneys.1 However, the litigation costs of time, grief, reputation, and money extracts a substantial toll on the profession. The legal costs alone to force dismissal of an obviously non-meritorious case run around $20,000.1

One of the factors leading to such a high frequency of frivolous claims is believed to be erroneous, egregious, unscrupulous, or outright false testimony provided by medical 'experts' opining on the standard of care provided by the physician defendants.

After 'winning' a case against such an expert, the physician who was sued is understandably upset and angry at the expert and would like some fashion of retribution. 'Countersuits' against the expert, primarily for defamation, have been almost universally unsuccessful. Defamation occurs when a false statement is made to a third party about another person that is damaging to that person's reputation or good name.2 Certainly, false expert witness testimony against a physician in the public forum of a lawsuit would meet the legal definition of defamation.

Unfortunately (at least for physicians sued for malpractice), there exists an ironclad legal privilege that immunizes experts from liability for statements made in depositions or at trial. Any comments made by the expert in the course of judicial proceedings that are relevant to the issues of the case are absolutely privileged, and this may surprise many physicians, even if those comments are known to be untrue or are outright malicious!3 The stated public policy behind this absolute privilege is the desire to protect the interests of injured parties by ensuring open access to the courts without the fear or burden of defamation suits and to preserve the integrity of the judicial system.3

However, if a physician makes defamatory comments against another physician outside the confines of the legal proceeding, where the judicial privilege does not apply, then that physician can be liable for defamation.4 (See the Florida Fullerton case in next month's ED Legal Letter.)

A more viable method to seek redress against an unscrupulous expert and combat false or exaggerated expert witness testimony is through peer review actions via professional associations, or through state medical boards, which will be addressed in Part II next month. A recent case highlights the issues involved, the potential hurdles to such actions, and the underpinning logic of the courts.

Bundren v. Parriott5

Dr. Parriott, an obstetrician/gynecologist practicing in Salina, Kansas, settled a lawsuit filed against him for $10,000, denominated as "exclusively and expressly for the reimbursement of expenses incurred by attorneys for the plaintiffs …" 5 Dr. Bundren, a faculty member of the University of Oklahoma College of Medicine in Tulsa, was the plaintiff's expert who testified at deposition that Dr. Parriott failed to comply with the applicable standard of care in the case. Both physicians were members of the American College of Obstetricians and Gynecologists (ACOG), which has a grievance process available to review complaints of one member against another member for violation of the College's Code of Professional Ethics or "Expert Witness Affirmation" statement.5,6 The affirmation statement, which Dr. Bundren signed in conjunction with Dr. Parriott's case, provides that the testifying witness will comply with the College's listed principles in providing expert witness testimony.5

Subsequent to settling the malpractice claim, Dr. Parriott filed a complaint with ACOG's grievance committee charging that Dr. Bundren materially misrepresented the facts in the case and failed to comply with the affirmation principles of:

"I will conduct a thorough, fair, and impartial review of the facts and the medical care provided, not excluding any relevant information."

"I will provide evidence or testify only in matters in which I have relevant clinical experience and knowledge in the areas of medicine which are the subject of the proceeding."5,6

In the complaint, Dr. Parriott noted that Dr. Bundren gave testimony based on an incomplete review of the facts available to him and gave testimony outside his area of clinical experience. In fact, at his deposition, Dr. Bundren admitted he did not read the complete deposition testimony of the plaintiffs prior to providing his expert opinion in that case, but instead just reviewed a few select passages of their testimony with the plaintiff's counsel just before his deposition. He also relied on a statement given by an outside party, without considering the statements of the parties, which contradicted his conclusions. Dr. Bundren also conceded in his deposition in that case that he had never had relevant clinical experience regarding one of the primary issues in the case (home childbirth) consultation about risk factors as they relate to a patient's candidacy for home birth, nor was he aware of any standards or protocols as they relate to the evaluation of a patient considering home delivery.5

In response to Dr. Parriott's complaint to ACOG, Dr. Bundren filed a lawsuit against Dr. Parriott seeking damages for defamation and tortuous interference with his medical-legal consulting business. Dr. Parriott, in turn, asked the court to grant summary judgment in his favor and against Dr. Bundren on the grounds that his ACOG claim contained no false or defamatory words.5

The court noted that Dr. Parriott's complaint contained an extended recitation of the underlying facts, followed by his opinions on how the facts demonstrate that Dr. Bundren violated the ACOG Ethics and Expert Witness principles. The court first ruled that under Kansas law "an opinion is not actionable where it discloses the facts upon which the opinion is based, regardless of whether the opinion is defamatory."7

Second, the court held that the allegations in the ACOG complaint were substantially true (and all based upon specific statements in Dr. Bundren's own testimony), and that truth or substantial truths are a complete defense to a claim of defamation.8 Alternatively, the court found that Dr. Bundren's defamation claim should be dismissed because there was no evidence that the ACOG complaint was communicated with the intent of harming Dr. Bundren's reputation. Dr. Parriott utilized ACOG's confidential grievance procedure and did not communicate any allegation against Dr. Bundren to a third party.5 In fact, Dr. Bundren's reputation could only suffer if the ACOG peer review committee found the complaint to be valid.

Finally, the court found that Dr. Parriott could not be liable for damages in submitting his ACOG complaint, because the organization's grievance procedure is a "professional review action" within the meaning of the Health Care Quality Improvement Act.5

The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101, et. seq. provides:

If a professional review action of a professional review body meets all the standards specified in …this title …

(B) any person acting as a member or staff to the body, … [and/or]

(D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any law of the United States or of any State … with respect to the action.9

In this case, the Kansas court determined that providing medical testimony as an expert witness is professional conduct (i.e., the practice of medicine), that it is subject to a professional association's (ACOG) peer review process, and that the peer review falls within the scope and purpose of the Heath Care Quality Improvement Act, therefore, no action for damages can be sustained against Dr. Parriott.5

The Bundren decision is supported by the rather famous case of Austin v. Association of Neurological Surgeons, which the Kansas court cited, where the 7th Circuit Court of Appeals also found that expert witness testimony by a physician is a type of medical service within the meaning of the HCQIA.10 The 7th Circuit held that:

"Although Dr. Austin did not treat the malpractice plaintiff for whom he testified, his testimony at her trial was a type of medical service and if the quality of his testimony reflected the quality of his medical judgment, he is probably a poor physician. His discipline by the Association therefore served an important public policy exemplified by the federal Health Care Quality Improvement Act which encourages … professional review."10

The appellate court also commented on the difficulty a trial judge would have in discerning whether an expert's testimony conformed to acceptable professional standards:

"When a member of a prestigious professional association makes representations not on their face absurd, such as that a majority of neurosurgeons believe that a particular type of mishap is invariably the result of surgical negligence, the judge may have no basis for questioning the belief, even if the defendant's expert testifies to the contrary."10

Most courts understand that experts use their membership in particular professional associations to bolster their credibility to the jury as an expert witness. The lawyers (for both the plaintiff and the defense) typically use such memberships to demonstrate the witness's experience and knowledge on the standard of care relevant to the litigation. As the 7th Circuit noted in the Austin case: "The Association [AANS] had an interest—the community at large had an interest—in Austin's not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves."10

The court concluded by saying, "We note finally that there is a strong national interest … in identifying and sanctioning poor-quality physicians and thereby improving the quality of health care."10

Any action taken against a testifying physician by a professional association may have major adverse consequences for the physician. Any suspension or expulsion from membership is an event required to be reported to the National Practitioners Databank.5,10-12 Warnings, reprimands, or censures of the physician for inappropriate testimony are not reportable; however, they are discoverable in the litigation process.10-12 Physicians sanctioned by their professional association will be effectively 'radioactive' and shunned by both plaintiff and defense attorneys in future med-mal litigation. Having to answer "Yes" to opposing counsel's question of "Doctor, have you ever been censured or sanctioned in any way by any professional association of your peers for giving false or misleading testimony in a medical malpractice case?" is no way to engender credibility with a jury.

Today, most professional societies have developed policies or behavior guidelines for their members providing expert witnesses testimony in malpractice cases.13 For example, like the ACOG, the American College of Emergency Physicians (ACEP), the American Society of General Surgeons, and the American Academy of Orthopedic Surgeons ask its members to execute an "Expert Witness Affirmation Statement." The affirmation document includes standards for the process of case review, limitation of testimony to areas of current clinical experience and competency, and the quality and integrity of the testimony provided.14,15

ACEP also has adopted Expert Witness Guidelines for the Specialty of Emergency Medicine,16 which includes the following warning:

"Misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action."16

Summary

These cases illustrate three major points:

1. Providing medical testimony is considered professional conduct, i.e., the practice of medicine;

2. Medical testimony is subject to the peer review process of physician professional associations; and

3. Those involved in the peer review processes of professional associations have immunity from suit under the federal HCQIA.

[Editor's Note: Next month's article will address cases where state medical boards attempted to discipline a physician over scurrilous expert witness testimony given in medical malpractice lawsuits, and other avenues that physicians are utilizing to curtail such testimony.]

References

1. See generally Henry GL, Sullivan DJ (Eds). Emergency Medicine Risk Management: A Comprehensive Review. American College of Emergency Physicians, 2nd Ed 1997; Studdert DM, et al. Health Policy Report: Medical Malpractice. NEJM 2004;350:283-292; Mello MM, Studdert DM, Brennan TA. The New Medical Malpractice Crisis. NEJM 2003;348:2281-2284.

2. Under Kansas law, defamation is the communication to a third party of false and defamatory words that results in harm to the plaintiff's reputation. Hall v Kansas Farm Bureau, 50 P.3d 495, 504, 274 Kan. 263 (2002).

3. E.g., Kahn v. Burman, 878 F.2d 1436 (6th Cir. 1989).

4. Fullerton v. Florida Medical Association, Fla. 1st District Court of Appeal, (July 2006).

5. Bundren v. Parriott, US District Court for the District of Kansas, (June 2006).

6. American College of Obstetricians and Gynecologists Code of Professional Ethics (and expert witness guidelines). "The College (ACOG) considers unethical any expert testimony that is misleading because the witness does not have appropriate knowledge of the standard of care for the particular condition at the relevant time."

7. Bundren v. Parriott, citing Phillips v. Moore, 164 F. Supp. 2d 1245 (D. Kan. 2001); El-Ghori v. Grimes, 23 F. Supp. 2d 1259, 1269 (D. Kan. 1998).

8. Bundren v. Parriott, citing Wilkinson v. Shoney 's, Inc., 4 P.3d 1149, 1169, 269 Kan. 194 (2000).

9. The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §11112(a)(1).

10. Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001).

11. Sullivan W. Expert opinions: Defendants aren't the only ones on trial. ED Legal Letter 2004;15(9):97-108.

12. Sacopulos MJ. Addressing False Expert Witness Testimony in Medical Malpractice Litigation. American Health Lawyers News 2005;9(5):24-29. [Suspension or expulsion from a professional medical society is reportable to the National Practitioner Data Bank when they are based on reasons relating to professional conduct which could adversely affect the health of a patient.]

13. E.g., ACEP Policy Statement, Expert Witness Guidelines for the Specialty of Emergency Medicine, Policy #400114 Approved by the ACEP Board of Directors August 2000; American Academy of Pediatrics, Guidelines for Expert Witnesses in Medical Malpractice Litigation.

14. American Society of General Surgeons, ASGS Expert Witness Certification Program; American Academy of Orthopaedic Surgeons, Code of Medical Ethics and Professionalism for Orthopaedic Surgeons and Expert Witness Affirmation.

15. ACEP's expert witness reaffirmation statement is available at http://www.acep.org/NR/rdonlyres/2921BCEE-DA21-4784-94F9-A9198BA61399/0/Reaffirmation.pdf.

16. ACEP Policy Statement, Expert Witness Guidelines for the Specialty of Emergency Medicine, Policy #400114.