Halting inappropriate expert witness testimony – Part III: Tort reform to prevent not-so-expert opinions

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

Introduction

In the past two months ED Legal Letter has explored state medical society actions to rein in unethical or fraudulent testimony by medical experts in malpractice litigation, and the efforts of state medical boards to use their licensure powers to censure, fine, or suspend the medical license of physicians who provide unprofessional testimony.1,2

In this last part of the three-part series examining recent cases concerning expert witness testimony, we will look at the effect of state tort reform measures in addressing the expert witness problem. Previous articles discussed methods to attack an unethical expert long after his or her testimony has already harmed a physician defendant. This month we study ways to prevent inappropriate experts from testifying in the first place. The goal of these state reform efforts is to require a plaintiff to convince a 'real' expert, one who has the appropriate credentials and is actually practicing in the same specialty as the defendant, that the treating physician violated the standard of care. These states covet true, actively practicing professional physicians speaking to the jury, not non-practicing professional "testifiers" as expert witnesses.

There are a number of methods used by the states seeking this objective, such as requiring the expert to be board-certified in the same specialty as the defendant physician, requiring to the expert to be actively practicing the same or similar specialty as the defendant, and/or requiring the expert to be familiar with the local community standard of care.

This article highlights two recent cases from Michigan and Texas that demonstrate the effectiveness of the "board certification" and "actively practicing" requirements in preventing unqualified experts from testifying in medical malpractice cases. And finally, for the coup de grâce in this series, we report an unusual case in which a U.S. Attorney's office is attempting to put a cardiac surgeon in jail for providing false testimony in a Detroit malpractice case.

Expert must be board certified in the same specialty as the defendant physician3

Plaintiff David Slaggert underwent cardio-thoracic surgery for the replacement of a defective mitral valve and subsequently suffered a stroke and gastrointestinal hemorrhaging requiring additional surgeries. He sued the Michigan Cardiovascular Institute, PC (MCVI), and its employee Luigi Maresca, MD, who was a board-certified cardiovascular surgeon, claiming Dr. Maresca negligently administrated and monitored the anticoagulant Coumadin® postoperatively, causing these complications and the resulting morbidity.3

As required by Michigan law,4 plaintiffs attached to their complaint an affidavit of merit signed by a physician who opined that defendants had failed to properly monitor and adjust plaintiff's postoperative Coumadin® dosage and had also negligently added aspirin to the anticoagulation regimen, resulting in the stroke and internal hemorrhaging. The plaintiff's physician expert was board-certified in internal medicine, but he primarily practiced cardiology.

A plaintiff initiating a medical malpractice action in Michigan must file with the complaint "an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirement for an expert witness" under state law.5 If the affidavit is defective, and the time to cure any such defects has passed, then failure to comply with this requirement may lead to total dismissal of the lawsuit.6 This means that the expert must in fact meet the legal requirements to be an expert witness, or if not, then at least the plaintiff's attorney must have had a reasonable belief that the expert would qualify. Both prongs must be analyzed before the court will toss out the lawsuit for failure to comply with the state's expert witness requirements.

In this case the defendants argued that the plaintiff's expert did not practice in the same specialty as Dr. Maresca, a board-certified thoracic surgeon practicing cardio-thoracic surgery, and therefore, pursuant to Michigan6 law was not qualified to testify as an expert witness against them.3

Plaintiffs argued in response that the administration of anticoagulants following surgery is outside the scope of practice for a thoracic surgeon. They also argued that Dr. Maresca, who no longer actually performed surgical procedures, was not practicing in the field of cardio-thoracic surgery at the time of the alleged malpractice, but rather cardiology.3 Thus, according to the plaintiffs, the affidavit of merit of a cardiologist was appropriate or, at least, counsel for plaintiff had a reasonable belief that it was appropriate, as required by the statute.3

The court noted that the statute governing expert witness testimony provides that if a party against whom testimony is offered in a medical malpractice case is board certified in a specialty, "the expert witness must be a specialist who is board certified in that specialty."7 The court also noted that in a prior emergency medicine case the Michigan Supreme Court held that the statute "requires that the expert witness 'must be' a specialist who is board certified in the specialty in which the defendant physician is also board certified."8

Therefore, the court had no trouble deciding that the plaintiff's expert did not meet the statutory qualifications as an expert witness and thus was ineligible to sign the affidavit of merit necessary for the suit to proceed.3

The court also determined that the plaintiff's attorney could not have held a reasonable belief that his cardiology expert would satisfy the state's expert witness rules based on the clear factual circumstances of the case and because no good faith investigation into the qualifications of the defendant nor any attempt to match those qualifications with an expert for purposes of filing the affidavit of merit with the complaint was made.3 The plaintiff's attorney must "have had a reasonable belief at the time of filing the instant suit that the proposed expert would meet the qualifications specified by statute."9

Consequently, the court found that the affidavit of merit submitted by plaintiffs to be insufficient to initiate their suit and summarily dismissed their claims against the defendants.3,10

Comment

Under Michigan law, the expert must be a specialist who is board certified in the exact same specialty as the defendant.6 Many states do not require experts to be board certified even if the physician defendant is a board-certified specialist. However, these states do require varying degrees of qualifications before a physician can offer testimony in a malpractice claim.

For example, North Carolina, like Michigan, requires an affidavit of merit to be filed with the malpractice complaint.11 The affidavit must be signed by a physician who is reasonably expected to qualify as an expert witness under the North Carolina rules of evidence if the case goes to trial; the plaintiffs can't get just any physician to sign the affidavit to initiate the lawsuit.11 Furthermore, the expert must be willing to testify at trial that the medical care did not comply with the applicable standard of care.11

North Carolina, similar to a host of other states such as Georgia, Ohio, and Tennessee, does not require the expert to be board certified in the same specialty as the defendant. Instead, North Carolinian experts must specialize in the same specialty as the defendant or "specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients."12 The North Carolina courts have held that a testifying physician is a 'specialist' for purposes of this rule if the physician is board certified in that specialty, or holds himself or herself out to be a specialist or limits his practice to that particular specific field of medicine.13

Georgia recently enacted new rules on the qualifications of medical malpractice experts which require that the expert witness have "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given …"14

Ohio has an interesting twist to its expert witness rules. The expert is required to be a physician in the same or substantially similar specialty as the defendant, and if the defendant is board certified, then the plaintiff's expert must be board certified by a board recognized by the American Board of Medical Specialties. However, the expert isn't required to be board certified in the same specialty as the defendant.15 If the Slaggert case had occurred in Ohio instead of Michigan, the result would have been different.

In Tennessee there is no statutory requirement that the expert witness practice the same specialty as the defendant, but the expert must be licensed to practice a specialty that makes his testimony relevant to the issues in the case and must be sufficiently familiar with the standard of care of the specialist and to give relevant testimony on that subject.16

Tennessee also has one very intriguing rule. Its medical expert witnesses must be from the state of Tennessee or a state contiguous to Tennessee.17 No California or south Florida physicians need apply to provide their expert witness trade in the Volunteer state.18

The states should allow testimony only by someone in the same specialty and with the same board certification status as the defendant physician. Why should an endocrinologist be allowed to testify on the management of diabetic ketoacidosis (DKA) in the ED? The endocrinologist knows a great deal more about the disease than the standard of care expected of an emergency physician, and at the same time doesn't practice in an ED to understand the unique circumstances of diagnosing, treating, and managing DKA patients in that environment. It is hardly judgment by one's peers.

Expert must be actively practicing in the same specialty as the defendant physician19

In Texas, when determining whether a physician is qualified by training and experience to testify as an expert in a malpractice case, the court is required by statute to consider, among other things, "whether, at the time the claim arose or at the time the testimony is given, the witness … is actively practicing medicine in rendering medical care services relevant to the claim."20

Plaintiff Mary Downing presented with an orbital blowout fracture that required surgical repair. She was not exactly pleased with the surgical results, so she sued Dr. Mark Larson for negligence. Her expert witness at trial, who practiced in Arizona, was board certified in plastic and reconstructive surgery, the same as Dr. Larson. However, the expert hadn't personally performed the surgical procedure (which he asserted was negligently performed by Dr. Larson) in well over 15 years.19

His explanation of why he hadn't repaired an orbital blowout fracture in 15 years may interest emergency physicians and explain why hospitals in Arizona don't have any plastic surgeons on call for their emergency departments:

"Like many plastic surgeons, as you progress in practice, you tend to go from reconstructive surgery into cosmetic surgery. And since facial fractures tend to be emergency cases at all hours of the day and night, you get younger associates who come in with you and they do it and that's basically the progression of my practice."19

The trial judge decided, since it had been 15 years since the expert had performed surgery like that performed by the defendant, that the expert was not "actively practicing medicine and rendering medical care services relevant to the claim," and excluded the expert's testimony at trial. A divided court of appeals reversed the trial court.21

However, the Texas Supreme Court overruled the appellate court and held that the trial court was well within its discretion in determining that the expert was too far removed from surgical practice. In so deciding, the Texas Supreme Court quoted itself, saying:

"We said in Broders that expert qualifications should not be too narrowly drawn, but we also said that given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization."22

Comment

Very well said, indeed! It is entirely appropriate that physicians be judged by peers who are doing exactly what they are doing on a day-to-day basis.

Many states have some variation of the "actively practicing" rule for medical experts in malpractice cases. In Tennessee, the expert must have practiced in the same specialty at least some time in the year preceding the medical event in question.23 Georgia requires "active practice of such area of specialty of his or her profession for at least three of the last five years."14 In North Carolina, the expert witness must have devoted a majority of his or her professional time in the last year to either active clinical practice that includes within that specialty the performance of the treatment at issue, or in the instruction of students in medical school or in residency in the same specialty as the defendant.24 Texas and a number of states have a similar "teaching" capacity alternative to meet the "actively practicing" requirement to qualify as an expert witness.20

Failure of the plaintiffs to tender an expert witness qualified under the state's rules results in dismissal of the case in favor of the physician defendant.25

Federal preemption of state expert witness tort reform

Over the past two decades, the states have painstakingly enacted a variety of malpractice procedural tort reform measures, such as notice provisions, discovery limitations, review panels, statutes of limitation, as well as expert witness rules. All of these protections go out the window, however, if the plaintiff can sue under federal law, specifically Emergency Medical Treatment and Active Labor Act (EMTALA).

EMTALA allows the plaintiffs to "obtain those damages available for personal injury under the law of the State in which the hospital is located …"26 However, the statute contains a preemption clause, which states that EMTALA preempts any state or local law requirement that directly conflicts with one of its requirements.27 Thus, the more stringent expert witness qualifications enacted through state tort reform will not apply to cases heard in federal court, where instead the more liberal federal expert witness rules apply.28

Thus, the board certification rule of Michigan, the "same specialty" rules of North Carolina, Tennessee, and Georgia, and the "actively practicing" rules of Texas, North Carolina, and Tennessee and all other state expert witness qualifications are not applicable in EMTALA claims. The retired cardiologist from California can testify that the residency trained, board-certified, actively practicing emergency physician in Michigan negligently managed a multiple trauma patient in the ED. So much for considering "the modern realities of medical specialization."

Summary

Legislating appropriate qualifications and specifications for expert witnesses is an effective means of decreasing the number of inappropriate or unethical experts preying on medical malpractice actions. All states … and the federal courts, too … should require plaintiffs to secure well-trained, equally credentialed, similarly experienced, and currently actively practicing physicians as experts who find merit in the claim before proceeding with litigation against a treating physician.

These last three articles have explored ways to rein in inappropriate, fraudulent, or unethical expert witness testimony. Sanctions by professional societies or declaring testimony as the practice of medicine to allow peer review and licensure actions by state medical boards are some of the other ways, besides legislating expert qualifications, to address the expert witness problem prevalent in medical malpractice litigation today.

But there is at least another way to attack unscrupulous testimony … put the "expert" in jail!

Criminal indictment for false medical expert testimony

In a rare gambit, the U.S. Attorney's office in Detroit is currently prosecuting a Miami cardiovascular surgeon for allegedly lying on the witness stand in a malpractice case.

Dr. Alex Zakharia was criminally indicted by a grand jury in early 2007 for scheming to defraud and obtain money by false pretenses and false representation.29

Dr. Zakharia is alleged to have lied on the witness stand in the Motor City about his credentials and experience concerning his practice of coronary bypass surgery. The indictment claims the surgeon buffed the number of his procedures and his responsibilities, asserting that he was the lead surgeon when in fact he merely assisted, in order to boost his credibility in front of the jury and to obtain work as a testifying expert.29,30 Furthermore, when asked by the plaintiff's attorney … who paid him thousands of dollars for his services … to substantiate his surgical credentials, which defense counsel believed to be grossly exaggerated, the physician is alleged to have misled the attorney so he would continue to be engaged on the case and monetarily compensated.29

Ironically, or perhaps not, the very same U.S. Attorney's office had been the defense counsel for the Veteran's hospital and its physicians, which had been sued in the malpractice case that Dr. Zakharia is alleged to have testified falsely.

Now that's going after an unethical expert!

References

1. Bitterman RA. Halting Inappropriate Expert Witness Testimony – Part I: Professional Associations Efforts to Police 'Experts'. ED Legal Letter 2007;18(1):1-4.

2. Bitterman RA. Halting Inappropriate Expert Witness Testimony – Part II. Efforts of State Medical Boards and State Medical Societies to Police 'Experts'. ED Legal Letter 2007;18(2):13-17.

3. Slaggert v. Michigan Cardiovascular Inst., No. 260776 (Mich. Ct. App. July 6, 2006).

4. MCL 600.2912d.

5. MCL 600.2912d(1); MCL 600.2169.

6. MCL 600.2169.

7. MCL 600.2169(1)(a).

8. Halloran v Bhan, 683 N.W.2d 129 (Mich. 2004); emphasis added.

9. MCL 600.2169d.

10. See Geralds v Munson Healthcare, 259 Mich. App. 225, 233; 673 N.W.2d 792 (2003). Whether such a belief was reasonable is "determined by the circumstances, including the information available to, and the investigation conducted by, the plaintiff's attorney." Also, Grossman v Brown, 470 Mich. 593, 599-600; 685 N.W.2d 198 (2004).

11. N.C. Gen. Stat. § 1A-1, Rule 9(j).

12. N.C. Gen. Stat. § 8C-1, Rule 702(b)(1) (2006).

13. Formyduval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96 (2000).

14. OCGA 24-9-67.1(c) (2005).

15. Ohio R.C. 2743.43.

16. Tenn. Code Ann. § 29-26-115 (2006). Ledford v. Moskowitz, 742 S.W.2d 645, (Tenn. Ct. App. 1987). Goodman v. Phythyon, 803 S.W.2d 697, (Tenn. App. 1990).

17. Tenn. Code Ann. § 29-26-115(b) (2006).

18. Sutphin v. Platt, 720 S.W.2d 455, (Tenn. 1986). The requirement that a medical expert witness be a licensed practitioner in Tennessee or a contiguous state does not violate the due process or equal protection rights of a party proffering a medical expert from a non-contiguous state.

19. Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c)(2).

20. Larson v. Downing, 197 S.W.3d 303 (Texas 2006).

21. Downing v. Larson, 153 S.W.3d 248 (Tex. App. 2004).

22. Larson v. Downing, 197 S.W.3d 303 (Texas 2006); quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).

23. Tenn. Code Ann. § 29-26-115(b) (2006).

24. N.C. Gen. Stat. § 8C-1, Rule 702(b)(2) (2006).

25. E.g., Allen v. Carolina Permanente Med. Group, P.A., 533 S.E.2d 812 (NC. 2000).

26. 42 USC 1395dd(d)(2)(A).

27. 42 USC 1395dd(f).

28. Federal Rules of Evidence (F.R.E.), Rule 702.

29. U.S. v. Zakharia, case 2:06-cr-20612, U.S. District Court, ED Michigan, Dec. 1, 2006.

30. See generally McAbee GN. Improper expert medical testimony. J Leg Medical 1998;19(2):257-272. Physicians have been criminally prosecuted for improper testimony, usually for perjury.