In search of truthful testimony: Scrutinizing expert witnesses

The medical community pushes to reform expert testimony regulation by toughening state laws, creating state and specialty medical society programs and enlisting medical boards.

By — Posted May 14, 2007

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When New York dermatopathologist A. Bernard Ackerman, MD, is called to testify as a medical expert witness, he refuses to know which side the lawyer represents.

It is his way of remaining objective when he evaluates a case. In addition, the academic clinician typically previews his presentation of the facts and his opinion for a student audience, as a way of holding himself accountable.

"I want to let the facts speak for themselves," said Dr. Ackerman, who has testified equally for the defense and the plaintiff in medical liability cases and in other cases where medical expertise is needed, such as criminal cases. Sticking to the facts, he says, prevents a cross-examining lawyer from tripping him up about his opinion being consistent.

That's not always the typical experience. Dr. Ackerman is among many doctors and lawyers who say they too often see "hired gun" experts testify in areas beyond their qualifications, leading the judicial process astray.

"What if that physician made the same statements in a classroom rather than a courtroom? What would be the judgment of his peers then?" Dr. Ackerman asked.

In response to the problem, states in recent years have ratcheted up efforts to rein in false medical experts. They have adopted legislation requiring experts to be qualified or have stepped up state medical board oversight over who testifies and what they say.

A majority of states have laws that require medical experts be licensed and have training and expertise in the same specialty as the defendant physician or in an area directly related to the case at hand. At least 10 states this year are pushing for even tighter measures, according to American Medical Association data. For example, North Carolina and Missouri are seeking to require that the testifying physician be actively practicing in a related field at the time he or she testifies or when the claim arose. Missouri's legislation also would give state medical boards the authority to discipline unethical experts. Oregon would require experts to disclose information about other cases in which they've testified and about their compensation.

Although there are no statistics on how often false testimony occurs, anecdotally doctors say there are those few so-called hired gun experts known for making a lucrative career of saying what lawyers and juries want to hear. Experts estimate that physicians can make $300 an hour to review a case, to $5,000 for one day in court.

Further, that's why the Missouri State Medical Assn. proposes to bar testimony given on contingency.

"It's the 'You don't get paid unless we win' or 'You get paid more if we do' sort of thing we're trying to get rid of," said Tom Holloway, MSMA's director of government relations.

As proponents lobby for the new measures, a recent study said these types of changes make a difference. The University of Tennessee Health Science Center published a report in the March/April Health Affairs suggesting that stricter expert witness rules, compared with other tort reform measures, are having the broadest impact on reducing medical liability claims.

The regulations are no panacea, said AMA board Trustee Robert M. Wah, MD, chair of the AMA's task force on medical liability reform. But, he said, they are another tool for judges to serve their "gatekeeper" role in keeping the courtroom as unbiased as possible.

"Justice is not being served any time a false view of a situation is presented, and when they are witnesses for hire, the concern is that the financial incentive clouds their scientific evaluation of the facts," Dr. Wah said.

Medical societies get active

Despite changes to state laws, some doctors say the restrictions aren't enough. They believe medical societies should be allowed to step in to police expert testimony to keep unqualified witnesses out of the courtroom. An increasing number of societies are finding ways to do that.

The AMA believes that expert witness testimony is akin to the practice of medicine and should be peer reviewed. Anecdotally, doctors and lawyers point to about 20 state and specialty medical societies with similar policies. The state and specialty associations have instituted programs that allow doctors to file complaints contesting fraudulent testimony. Unethical experts could face discipline.

"When a physician is called upon to analyze the propriety of treatment someone has given, he's really diagnosing that patient, and that's just as much a part of the practice of medicine as getting a second opinion," said Russell M. Pelton, American Assn. of Neurological Surgeons legal counsel. The group has a 24-year-old expert review program and has disciplined roughly 30 plaintiff experts and one defense witness in that time.

The courts, however, have returned mixed reviews of medical society involvement.

A Florida appeals court in July 2006 found that state and federal peer review statutes do not clearly address whether expert testimony should be subject to professional scrutiny. Meanwhile, a Kansas federal court a month earlier concluded that expert testimony is the practice of medicine and subject to peer review.

Both opinions drew on a precedential 2001 7th U.S. Circuit Court of Appeals ruling involving the AANS that said expert testimony is "a type of medical service" and that the Health Care Quality Improvement Act authorizes professional organizations to discipline the practice.

"That really opened the door in telling medical societies not only is it acceptable, but really the courts are somewhat relying upon these groups to set the standard," said Indiana health lawyer Michael J. Sacopulos.

But some doctors say the measures are designed for intimidation.

"It has a tendency to suppress real doctors with real credentials from coming forward in meritorious cases," for fear of retaliation, said internist John H. Fullerton, MD. The California physician won his right to sue the Florida Medical Assn. for defamation in the 2006 Florida case when three members reported his testimony against them as a plaintiff expert. Meanwhile, the FMA has put its 4-year-old review program on hold and is not appealing the ruling. The defamation case is expected to go to trial.

Extra regulation not needed, some say

Plaintiff attorneys say they screen their cases carefully and that an unqualified expert is just as much a risk for them, too.

"You know if you've got a bad expert," said Dr. Fullerton's attorney, John Vail, vice president of the Washington, D.C.-based Center for Constitutional Litigation PC. "The better versed witnesses are, the better for everybody involved."

If experts are found acting in bad faith, courts have tools to punish them and the party they represent, including fines, disqualification and dismissal of the case entirely, he said. And false experts face their opinions and credibility being torn apart during cross-examination.

"The other side is putting an even more powerful microscope on not just the testimony but the exact wording. Everything is heightened and magnified, and you bet you feel it," said Dr. Fullerton, who has testified in cases on both sides, though more often for plaintiffs.

A court even can throw an expert in jail for any misrepresentations, though that action is rare. A Michigan U.S. attorney in November 2006 filed criminal perjury charges against a Florida cardiovascular surgeon for allegedly lying about his qualifications when he testified as a plaintiff expert. The case is expected to go to trial in July.

More often than not, it's simply a difference of opinion, versus outright fraud, that the courts are dealing with, said James C. Garland, a plaintiff attorney in the Kansas case.

And an opinion is "not medical care and it has nothing to do with medical care," he said.

Onerous regulations make it difficult to find a qualified expert even willing to testify, Garland said, particularly in some areas where medical society pressure is high.

But the medical community says it has standing in the realm of scientific evaluation, and its activities are not trespassing on legal ground.

"The purpose is not to stop litigation, but to make the courtroom environment as truthful as possible," the AMA's Dr. Wah said.

State medical board crackdowns

Anecdotally, experts count a minimum of 20 state medical boards that consider testifying as the practice of medicine. At least four states -- California, Mississippi, North Carolina and South Carolina -- have policies to punish fraudulent testimony, said the Federation of State Medical Boards. Mississippi's board, for example, approved fines of up to $10,000 and possible license revocation last June.

South Carolina is the only state to pass a law requiring out-of-state experts to get a temporary license before testifying. Michigan and Florida are pushing for similar statutes. Only Georgia requires an expert to be licensed in the state.

But courts have overturned medical board policy. A North Carolina appeals court in June 2006 reversed the state medical board's decision to revoke a doctor's license after the board found his testimony improper. The South Carolina Supreme Court last August suspended the licensing statute, saying it interferes with the judicial process.

"What I have not seen is a court say if you want to come to this state and testify, and the state considers that the practice of medicine, you need to be licensed," which would give teeth to boards' authority, Indiana health lawyer Sacopulos said.

Still, the measures are sending a clear message to other states, said FSMB President and CEO James N. Thompson, MD. "Those without strong restrictions like Mississippi's will soon be on board."

Federation policy considers fraudulent testimony to be unprofessional conduct.

On the road ahead, doctors say awareness is key to deterring deviant experts, and efforts thus far are a triumph, considering that 10 years ago, no one really spoke about the issue.

But it's a delicate balance, warned Illinois anesthesiologist Jeffery S. Vender, MD, who has reviewed cases on both sides over the last 20 years. For the system to work, the courts and the medical profession must act judiciously, he said.

"It's hard to draw the line sometimes between disagreement with a contrary opinion, and falsification," Dr. Vender said. That's why ensuring experts' qualifications is critical, he said, "because at the end of the day, it's all about whether the standard of care was met."

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Judging witness review programs

The courts have taken different approaches in several ongoing cases that will determine whether state legislation and medical societies can play a role in policing expert witnesses.

Issue: Whether state and federal peer review statutes protect medical society programs that review physician expert testimony in lawsuits.Case: Bundren v. Parriott; Venue: U.S. District Court for the District of Kansas; Status: The federal district court said yes, dismissing a defamation lawsuit against a doctor who filed a complaint with the American College of Obstetricians and Gynecologists. The decision is being appealed to the 7th U.S. Circuit Court of Appeals.Case: Fullerton v. Florida Medical Assn. Venue: Florida 1st District Court of Appeal. Status: The appeals court said no. The FMA is not appealing. The ruling allows a defamation lawsuit brought by an expert under review to go forward against the medical society. A trial date is pending.

Issue: Whether a state law requiring out-of-state physicians to obtain a temporary license before testifying as medical experts in court cases infringes on the judicial process.Law: South Carolina Act No. 385 of 2006. Venue: South Carolina Supreme Court. Status: The high court said yes and blocked the state medical board from enforcing the law. Justices recommended that state legislators further clarify and amend the statute. At least two new bills have been introduced in committee, but no vote has been scheduled.

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