Have stethoscope, will testify; pitfalls of the expert’ witness
New group seeks to rein in doctors serving solely as experts for hire
In July 2002, the North Carolina Medical Board made history by becoming the first state board to revoke the license of a physician for giving what it considered to be false and misleading testimony in a medical malpractice case.
The board claimed Gary Lustgarten, MD, a Florida neurosurgeon who testified for the plaintiff in a 1998 malpractice case, engaged in unprofessional conduct by both misstating facts of the case and the appropriate standard of care in that state.1
The board also noted that his Carolina license had been inactive since June of 1998 (his office is located in North Miami Beach, FL), and the American Association of Neurological Surgeons (AANS) had twice suspended Lustgarten’s membership over his witness testimony (once for the Carolina case and once for testimony in another proceeding).
Although the board’s ruling was later overturned in Wake County (NC) Superior Court, and is currently under appeal,2 medical-legal experts say the board’s action indicates a new wave of scrutiny for medical expert testimony and the physicians who provide it.
"We are quite convinced that there are thousands of doctors across the country who are really incensed about this issue, but don’t have a clue about what they can do. They have just given in," says Louise Andrew, MD, JD, FACEP, an emergency physician and attorney practicing in Victoria, British Columbia.
Andrew also is co-founder of the New York City-based Coalition and Center for Ethical Medical Testimony (CCEMT), a group dedicated to reforming the medical expert witness "industry."
They want to expose physicians who "falsify credentials, prevaricate on the witness stand, and intentionally or carelessly mislead lay juries about the standard of care for personal gain," she adds.
Although a few states have rudimentary laws governing who can serve as a medical expert, the requirements vary widely across the country, and there is no established method of reviewing the testimony that is given.
The result, Andrew alleges, is that a lucrative cottage industry has emerged, one that is overpopulated by physicians who serve as medical experts in cases unrelated to their area of expertise and often make most of their income testifying in court, not seeing patients.
"Some states don’t even require you to have a license to practice medicine to serve as an expert witness," she says. "You could be a podiatrist or a physical therapist or respiratory therapist testifying against a doctor."
Guidelines called for
The CCEMT hopes to support physicians across the country in pushing their states, state medical boards, and professional societies to develop stricter rules governing who should be able to serve as a medical expert witness, what kinds of testimony are appropriate, and in disciplining doctors who violate those rules.
Judges, in particular, need some guidance as to what training, certification, and experience qualifies someone to serve as an expert in a particular case, Andrew advises.
Some states have laws stipulating basic requirements for medical expert witness, but many have faced legal challenges. Some state medical boards have attempted to offer guidelines, but these are not always adhered to, says William Sullivan, MD, JD, FACEP, an emergency physician and attorney who practices in Orland Park, IL.
"Illinois law, for example, requires that an expert have practiced or taught in the same area of health care or medicine at issue within the previous six years," he says. "An attorney must also sign an affidavit stating that he or she believes the expert is knowledgeable in the relevant issues and is qualified by experience in the subject matter of the case."
Those requirements are good starts, he notes. But, too few states have similar laws, and those protections are not enough to ensure that expert testimony is valid and unbiased, Sullivan notes.
"I would also add a requirement that the expert used practice in the same specialty as the physician about whom the expert is rendering an opinion," he adds. "I would also require that experts have some amount of active clinical practice — whether that amount should be 50%, 75%, or more is up for debate. Personally, I believe 75% is a fair number."
Frequently, courts are certifying "academicians and professional witnesses" who have not practiced in their specialty for a number of years — if at all, he adds.
"A professor emeritus who lectures students all day has no basis for determining what a clinically practicing physician would do under the same or similar circumstances," Sullivan says. "Yet, because such experts have their names on textbooks, they are routinely sought out by plaintiff’s attorneys who believe that inflated credentials will sway juries."
An expert witness should be a peer who has "walked in the shoes" of the physician about whose care they are testifying, he says.
"It is fundamentally unfair for a physician who cares for multiple critically ill patients per day to be judged by someone who hasn’t picked up a stethoscope in years," he says. "Worse yet is the clinician who falls victim to the professional witness who testifies that textbook medicine’ is the standard of care in every circumstance."
Physicians who have practiced or taught solely in large, academic medical centers may have good intentions when giving their opinion about a particular standard of care, Andrew says. However, many lack an appropriate understanding of the constraints under which physicians working in the real world operate.
"I have been an academician, so I know what I am talking about," she says. "They tend to want in their heart of hearts for everything to be done perfectly and to the highest standard of care that can be provided in a tertiary care medical center to be available to everyone. They may be looking at some of these cases that come up in the rural United States and think, Well, why can’t they have had a neurosurgeon there in 15 minutes?’ They set up unrealistic expectations."
The color of money
Aside from the witness who might give inaccurate testimony because of inexperience, the more pressing problems are those who knowingly give misleading testimony for financial gain, Andrew says.
CCEMT has documented (and is maintaining a database of) situations in which physicians have given contradictory testimony in similar cases and given testimony that contradicts information they themselves have published in the medical literature, she notes.
Fees for medical testimony have become so outrageous, Andrew reports, that the integrity of many experts cannot help but be compromised.
"A few weeks ago, a Chicago neurosurgeon testified that he was paid $1,500 per hour for his work [related to the trial]," she says. "Even a neurosurgeon — except maybe when he is separating Siamese twins — doesn’t make that much per hour."
Serving as an expert witness can be highly lucrative and is without many of the attendant risks of practicing medicine, she adds. Many physicians see it as a necessary supplement to their dwindling income from private practice. And some, she says, are finding it so beneficial they all but abandon their medical practices, entirely.
Procurement agencies also have stepped into the fray and many earn bonuses for favorable verdicts.
"The individual witness is not compensated that way. They are paid regardless of a win or loss," Andrew notes. "But, we know that some procurement agencies — firms that advertise offering to find experts for attorneys — are paid based on the ruling."
A medical expert often has a different role in a malpractice case beyond the testimony given during the trial. In most situations, an opinion from a recognized expert is necessary to initiate a legal proceeding against a clinician or health care facility.
Thus, some medical-legal experts may have significant incentives to certify a case as malpractice, so that it can go forward and they can collect fees for the provision of expert medical opinion and testimony.
This incentive should be balanced by some sort of peer review of the expert’s conduct in the legal proceeding, or an impartial review of the medical aspects of a case prior to trial, some say.
"I think the whole system needs to be reformed to make it so that there is not this battle of the experts," says Sullivan. "The courts are necessarily adversarial, but the expert witness system doesn’t have to be."
For example, in Indiana, an allegation of malpractice must be presented before an expert medical review panel before a lawsuit can be filed. The panel consists of three physicians and one attorney. If the panel makes a recommendation against filing suit, the plaintiff still can proceed, but the findings of the panel can be admitted in court as evidence.
"But before spending thousands of dollars on what may be a losing case, the plaintiff is afforded an opinion from three unbiased experts," he explains.
However, a similar review system was declared unconstitutional in Illinois.
"An alternative would be to have the court appoint an expert or a panel of experts from a pool suggested by attorneys from both sides of the case," Sullivan continues. "Each side could be allow to object to certain experts in much the same way that juries are selected."
Even now, some state medical boards and professional societies are starting to take a hard look at their members’ testimony as medical experts.
The AANS has initiated an aggressive program under its Code of Professional Conduct that reviews the testimony given by its members and disciplines those it deems to have given testimony they consider false or misleading.
In 1998, the AANS suspended the membership of neurosurgeon Donald C. Austin, MD, after its professional conduct panel review testimony he gave in a malpractice suit. He resigned his membership, but sued the association in federal court, claiming their action violated his due process rights and diminished his status an expert witness.
Austin contended that professional associations such as the AANS do not have the right to judge trial testimony given by their members and that doing so constituted improper intimidation of potential witnesses.
But the court ruled in the association’s favor, and the judgment has been upheld on appeal.
For the Court of Appeals, Judge Richard Posner wrote:
"By becoming a member of the prestigious American Association of Neurological Surgeons . . . Austin boosted his credibility as an expert witness," he wrote. "The association has 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. . . . Judges need the help of professional associations in screening experts."
Medical boards, professional societies, and individual physicians have a vested interest in putting medical expert testimony under the microscope, says Andrew.
Expert testimony is essential if judges and juries are to understand the complex clinical particulars of a case, she says. However, to maintain the public trust and the integrity of the medical profession, it is essential that professional societies and medical boards take a role in evaluating appropriate and inappropriate testimony, Andrew adds.
"No professional society wants to allow or help malpractice to happen," she says. "But, they don’t think their members should be drummed out of practice because there are a few desperate people out there willing to lie for money."
Professional review panels have no incentive to find that malpractice hasn’t occurred if it has, Andrew continues. But when a jury of the physician’s peers in the profession find that testimony is outrageous and not within acceptable standards for their specialty, the expert must be held accountable.
However, far from being a needed reform, some are claiming that efforts to restrict who is eligible to testify and to initiate retrospective review of testimony only will serve to intimidate physicians and limit the ability of injured patients from obtaining relief.
A chilling effect?
Even under the current system, many malpractice attorneys claim, physicians in a particular area or region are unwilling to testify against their colleagues for fear of professional retribution.
Attempts by some state boards to require experts to be licensed to practice in the states in which they offer testimony, for example, will make a bad situation even worse, they argue.
This is not a farfetched claim, says Sullivan, who, like Andrew, has served as an expert witness in malpractice cases in addition to practicing medicine.
"Like it or not, physicians are under some pressure from colleagues not to testify against other physicians," he notes. "Some who do are viewed as traitors. Unless there is some underlying motive I am not aware of, I see no reason to arbitrarily say that physicians living on one side of a state border are qualified to testify, and those on the other side are not."
Boards and professional societies must be careful to establish procedures that can examine the conduct of expert witnesses, but are secure from abuse and open to appeal, Sullivan notes.
He favors efforts to initiate credentialing programs to certify physicians who may serve as expert witnesses, and the formation of educational programs that instruct clinicians on the pitfalls that may be encountered as a medical expert witness.
"I think some sort of oversight board for expert witnesses is an interesting concept," he notes. "Requiring physicians willing to act as experts to undergo basic education about the legal system and the importance of providing nonbiased, ethical, and evidence-based testimony could help weed out physicians who are not testifying ethically. What is so abhorrent about the idea of a credentialing body for physicians testifying as experts? Right now, there is little or no oversight, and there is no disincentive for testifying unethically."
As a physician, Sullivan has seen both sides of a malpractice suit.
In 1999, he arrived to begin a shift in the emergency department of a Chicago hospital. Immediately, he was asked to help the trauma team with a difficult IV start in a woman who had been severely injured in a car accident. He was able to insert the IV on the first try and then left treatment to the physicians already caring for the woman.
The patient died early the next morning from internal bleeding.
A year later, Sullivan and nine other physicians were sued for malpractice for allegedly "failing to appreciate the signs and symptoms of internal bleeding and for failing to surgically repair the bleeding."
The case against Sullivan was dismissed, and seven of the other physicians also were dropped from the suit for lack of evidence. Yet their careers still were scarred.
That case highlights an important feature of medical malpractice, notes Andrew. "Even if the jury finds in your favor, even if you win the case, or, even if the case is thrown out entirely, you can still lose," she notes. "The fact that you have been sued follows you for your entire career."
Hospital credentialing committees often ask prospective physicians if they ever have been sued, she notes. If the committee is composed primarily of academicians who have never been sued, this person can be at a severe disadvantage.
The medical community should definitely be wary of and willing to weed out bad doctors, Andrew notes. But, they also must ensure that they are not falsely damaging good clinicians at the same time.
"We definitely want to keep good, ethical medical testimony. When malpractice occurs, the injured party should have some recourse," she notes. "But, a malpractice suit follows a physician for a long time after the trial is over. It is not just a question of going through the court process. And if there was no basis for it to begin with, then that is really grossly unfair."
1. Adams D. Physician loses license over expert testimony. American Medical News. Aug. 19, 2002.
2. Adams D. Scrutiny for doctors as expert witnesses? American Medical News. July 7, 2003.
- Louise B. Andrew, MD, JD, Coalition and Center for Ethical Medical Testimony, 145 E. 32nd St, 10th Floor, New York, NY 10016.
- William Sullivan, MD, JD, FACEP, The Medicolegal Group, 15774 S. LaGrange Road #187, Orland Park, IL 60462.