Disciplined Expert May Countersue

Sanctions may be inadmissible

The fact that an expert witness recently prevailed after suing a specialty society for suspending him for allegedly giving improper testimony in a medical negligence case won’t affect the ability of the American College of Emergency Physicians (ACEP) to discipline unethical expert witnesses, according to Louise B. Andrew, MD, litigation stress counselor, founder and principal of www.MDMentor.com, and former chair of ACEP’s Professional Liability Task Force Expert Witness subcommittee.

“However, if ACEP is sued by an expert who has been disciplined, it could affect ACEP’s willingness to continue this program,” she says. “The number of experts disciplined so far has been quite small, and the sanctions were fairly mild.”

However, Andrew says that the verdict could encourage more expert witnesses to sue specialty societies that sanction their behavior.

Unaware of Options

“We know from a recent all-ACEP survey that EPs are extremely concerned about the problem of unethical testimony,” Andrew reports. “And when they are affected by it, they sometimes react too quickly — and without regard to their own legal safety.”

Although nearly 60% of more than 2,200 ACEP members surveyed in June and July 2010 reported having experienced litigation stress, 87% had not sought any assistance for dealing with it. More than a third of those who had sought assistance did so from colleagues.

The overwhelming majority of respondents were unaware of ACEP resources such as the peer-to-peer counseling mechanism. Although nearly 71% of respondents thought that ACEP should increase its current activities in regard to expert witness testimony, more than half were unaware of ACEP’s expert witness and ethics policies and how to utilize them.

The survey was very lengthy and took at least 25 minutes to complete, yet many physicians took additional time to write in responses, most of which concerned litigation stress and expert witness issues. “The 10% response rate was almost unheard of with ACEP surveys. There was passion regarding these issues,” Andrew says.

Is It Admissible?

“There have been attempts [to sanction expert witnesses], but few successes. Counter claims for restraint of trade can make the effort expensive for the organization,” says Hill.

Given the infrequency of completed sanctions, subsequent use of them to attack the witness is not well-tested, he explains. “One would think it would be permitted in voir dire, and it would go to the credibility of the testimony in any subsequent case,” he says.

When the defense is asking the witness questions in an attempt to show that he or she is not sufficiently well-versed in the subject to be able to state an opinion, the defense may ask about the fact that the expert was disciplined by a medical society, and use this to argue that the witness should not be allowed to testify, says Hill.

“If this is the only expert witness offered by the plaintiff as to standard of care, and the case is not susceptible to a res ipsa loquitur argument, it’s all over,” he says. “Of course, the plaintiff is unlikely to offer a witness known to be this vulnerable.”