Is expert witness in malpractice suit making false, misleading statements?
Is expert witness in malpractice suit making false, misleading statements?
A witness' testimony could be excluded
(Editor's Note: This is the second of a two-part series on expert witness testimony in medical malpractice cases. This month, we report on how a witness could be prevented from testifying and what actions could result in physicians being accused of witness tampering. Last month, we covered possible approaches if witnesses for the plaintiff give inaccurate testimony.)
Did a plaintiff's expert rely on a study that was not yet available at the time that the incident at issue took place, or a study that was discarded by the medical community in favor of a more recent consensus?
That reliance might be grounds for the witness to be excluded from testifying, says Scott Perlmuter, JD, a litigation attorney with the Cleveland, OH-based firm of Novak & Pavlik.
While state law varies on the precise bounds of appropriate expert testimony, experts uniformly are required to employ reliable and prevailing methodology in arriving at their opinions, he explains.
"Your familiarity with the most up-to-date studies and peer-reviewed data in the subject matter of the case — and how that research has developed in recent years — can be a valuable resource in your defense," says Perlmuter.
With proper support, motions can be filed to preclude an expert witness from offering testimony in a case, says Maureen M. Vogel, JD, a shareholder with Polsinelli Shughart in Kansas City, MO. Previous court transcripts typically are public records that can be obtained and used to demonstrate habitual false testimony, Vogel adds. "This information could be used to support a motion to strike the expert from testifying in a case," she says.
Defense counsel will research expert witnesses and determine, among other things, whether their testimony has been disallowed in any other court and the reasons for that ruling, says Vogel. "Habitual false testimony of a witness could be reported to the state board where the physician is licensed to practice," she adds.
Courts will exclude an expert's testimony if the court finds the opinion is not based on information generally relied upon by members in their field, says Kenneth C. Brostron, JD, an attorney with Lashly & Baer in St. Louis, MO. "Experts cannot rely on their personal views — only the standard of care, relying on those standards generally relied on by members of his profession," adds Brostron.
Experts who testify have a qualified immunity as to claims of slander; therefore, such claims require elements of proof regarding knowledge and malice that are difficult to prove, he notes. "The most effective method against unscrupulous experts is to prepare vigorously and refute the expert at every point to discredit him or her," Brostron says. "The jury verdict and the transcript record will follow the expert until he or she no longer are used."
Disqualification unlikely
Judges generally are reluctant to entirely exclude the testimony of a party's expert, but ensuring that a plaintiff's expert is thoroughly cross-examined prior to trial on their methodology is crucial to the defense, says Charles Emerman, MD, professor and chairman of emergency medicine at Case Western Reserve University in Cleveland, OH.
"If the expert is well-published in the area of the case and their testimony contradicts their prior writings, that contradiction can be used to attack the credibility of the witness," Emerman says. "It may prove to be the compelling bit of evidence that sways the jury."
It is the work of counsel to seek to disqualify an expert, but there are steps the defendant physician can undertake to assist in their own defense, he advises. "As a party to the case, you can participate in each aspect of the legal proceedings," Emerman says. Physician defendants can take these steps:
• Review commonly used textbooks, guidelines, policy statements, and prominent literature.
"You should not undertake this research except under as part of the instructions of your lawyer, so that it becomes part of their work product," Emerman emphasizes.
• Assist counsel in identifying areas of inconsistency in the expert's courtroom testimony and deposition testimony.
• Appear at the testifying expert's depositions.
"You have the opportunity to inform your counsel, during the conduct of the deposition, of statements that you think are misleading, false, or exaggerations," says Emerman.
Sanctions are possible
Several professional societies have established review processes and sanctions for expert witness testimony, says Karen Domino, MD, MPH, chair of the American Society of Anesthesiologists (ASA)'s Committee on Professional Liability and professor of anesthesiology and pain medicine at the University of Washington in Seattle.
In 2003, for example, the ASA established an Expert Witness Testimony Program in which an ASA member may file a complaint against any other ASA member for giving expert testimony that violates the ASA Expert Witness Ethical Guidelines. The guidelines call for truthful, thorough, and impartial testimony, says Domino, and if an expert's testimony is found by the Committee on Expert Witness Testimony Review to be unethical, the society may sanction a member. "If a state board or medical society has disciplined an expert based on false testimony, defendants in a medical negligence case would seek to have that fact admitted into evidence," says Vogel.
The American Academy of Orthopaedic Surgeons is fighting a jury verdict that found the society unfairly portrayed a former member who acted as an expert witness.1
Louise B. Andrew, MD, JD, FACEP, principal of MDMentor.com, a resource for litigation stress support for physicians, says, "Several experts have now sued physician defendants who have brought ethics complaints against them in several medical societies, so it would not surprise me to see this happening again in the wake of the judgment, if upheld on appeal." (See related story, below, on avoiding allegations of witness tampering.)
Physician defendants must separate the expert's opinion from the expert's assertion of facts, says Emerman. "An expert is there to offer their opinion, and you will have a difficult time prevailing in a claim against their opinion," he says.
Misstatements about medical facts, such as exaggerated claims about the effectiveness of a particular therapy, are more likely to be the subject of review, according to Emerman. "In some states, the provision of expert testimony is considered to be the practice of medicine," he says. "As such, sanctions may be available through the state medical boards."
Reference
- Graboff v. the Colleran Firm. (E.D. Pa. Nov. 8, 2010).
Sources
For more information on expert witness testimony, contact:
- Louise B. Andrew, MD, JD, FACEP, Victoria, British Columbia, Canada. Phone: (425) 609-0039. Email: [email protected].
- Kenneth C. Brostron, JD, Lashly & Baer, St. Louis, MO. Phone: (314) 436-8305. Fax: (314) 621-6844. Email: [email protected]
- Karen Domino, MD, MPH, Professor, Anesthesiology and Pain Medicine, University of Washington, Seattle. Phone: (206) 616-2673. Fax: (206) 543-2958. Email: [email protected].
- William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. Email: [email protected].
- Maureen M. Vogel, JD, Shareholder, Polsinelli Shughart, Kansas City, MO. Phone: (816) 395-0605. Fax: (816) 817-0223. Email: [email protected].
Avoid accusations of witness tampering Once litigation has begun, it is unwise for a defendant to personally take any action against an expert witness, warns William Sullivan, DO, JD, FACEP, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, IL. While the definition of witness intimidation varies between states, many state statutes parallel the federal definition of witness intimidation., says Sullivan. The definition of witness intimidation in federal statutes is expansive and includes the use of intimidation, threats, or harassment with the intent to influence, delay, or prevent the testimony of any person in an official proceeding or which ultimately does delay, hinder, or dissuade a witness from giving testimony, he notes. "The maximum sentence for witness intimidation under federal statutes is a fine and 20 years in prison," says Sullivan. Lawful actions taken with the sole intention to cause a witness to testify truthfully may be presented as an affirmative defense to the crime of witness intimidation, acknowledges Sullivan. However, he adds, "this affirmative defense does not prevent witness intimidation charges from being filed and does not preclude the need to retain a criminal attorney whose fees will likely not be covered by medical malpractice insurance." A defendant radiologist in a 2004 malpractice suit was investigated for witness tampering after anonymously sending a plaintiff's expert an article that advocated blacklisting physicians who testify against their colleagues, reports Sullivan. "Eventually, the radiologist admitted sending the letter after the judge threatened to obtain DNA samples from all of the defendants in order to match it with DNA from the letter," says Sullivan. In another instance, an emergency physician was accused of witness tampering after filing ethics charges against an opposing expert during a medical malpractice case. "Even if the expert's testimony was inappropriate, the action taken by the physician was perceived as being intended to influence the expert's testimony," explains Sullivan. The only advisable recourse against an expert witness who makes inappropriate statements during litigation is to provide one's attorney with any available information that would rebut the testimony and discredit the witness, advises Sullivan. "After a trial has ended, witness intimidation is no longer a concern. Then, the physician may consider filing ethics charges against the expert for inappropriate testimony," says Sullivan. |
(Editor's Note: This is the second of a two-part series on expert witness testimony in medical malpractice cases. This month, we report on how a witness could be prevented from testifying and what actions could result in physicians being accused of witness tampering. Last month, we covered possible approaches if witnesses for the plaintiff give inaccurate testimony.)
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