Expert witnesses on trial
■ State legislators, physician organizations and courts are taking steps to ensure that the experts provide ethical and appropriate testimony.
By Alicia Gallegos — Posted Aug. 1, 2011
The ideal goal of an expert witness during testimony is to be "an indifferent advocate for the truth," said neurosurgeon Jeffrey Segal, MD.
Too often, though, physicians make careers as such experts and use unethical tactics to sway jurors, said Dr. Segal, founder and CEO of Medical Justice, a company that sells medical liability insurance and provides legal resources to combat frivolous claims.
"Expert witnesses are the weak or strong link in any medical liability case," he said.
Lawmakers, physician organizations and courts are taking steps to combat unethical testimony by these so-called hired guns.
In recent years, several states have enacted tighter restrictions on expert witness testimony in medical negligence cases. At the same time, more medical associations and state medical boards have created standards for proper expert witness testimony and acted against experts who violate those rules.
Courts also are taking stronger stances against questionable experts. For example, high courts in Arizona and Maryland in 2009 upheld as constitutional state restrictions against expert witnesses.
"There is a growing awareness on the part of expert witnesses -- for both sides -- that what they are doing is not necessarily going to be kept behind closed doors, which definitely was not the case 10 years ago," said Louise B. Andrew, MD, an attorney and independent consultant for physicians on litigation and expert witness issues. "They can't just go and say whatever they are paid to say and expect that peers will never know."
Florida is the latest state to pass restrictions on the use of expert witnesses in medical liability cases. Under a law signed July 1 by the governor, out-of-state physicians offering expert testimony must apply for a certificate to testify. The state medical board can discipline them if they provide deceptive testimony.
"Before, there was absolutely no accountability for what [expert witnesses] did in Florida," said Jeff Scott, general counsel for the Florida Medical Assn. With the new law, "you can't come into Florida and testify falsely and hope to get away with it."
At least 30 states have similar expert witness laws. Some statutes, such as Arizona's, require witnesses to practice in the same specialty as the physician defendant. Others, like Maryland's, mandate that doctors spend a certain amount of time actively practicing medicine.
Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, said Lisa Robin, chief advocacy officer of the Federation of State Medical Boards. However, each board's process of investigating complaints and enacting discipline differs. Whether states have jurisdiction to punish out-of-area doctors also varies, Robin said.
In Mississippi, doctors from out of state who give deceptive testimony can be prohibited by court injunction from testifying in future cases. The state medical board also can revoke the licenses of doctors who provide false testimony and charge physicians up to $10,000 for investigating a case.
Since the 2006 regulations were adopted, the Mississippi State Board of Medical Licensure has not disciplined any physicians for false testimony, said board member and attorney Philip Merideth, MD. The board has investigated one case related to allegations of deceptive testimony, and the case review is ongoing, he said.
"In general, medical licensure boards are not like traffic cops and are not out there looking for infractions," he said. "We're complaint-driven. We hope [the lack of activity] means physicians are aware of the regulations and are following them."
However, Howard Blumstein, MD, president of the American Academy of Emergency Medicine, said medical boards often are hesitant to discipline witnesses for fear of lawsuits. One example he cited was the case of Florida neurosurgeon Gary Lustgarten, MD, who gave testimony as a medical expert in a North Carolina medical liability lawsuit.
The North Carolina Medical Board found that Dr. Lustgarten had engaged in unprofessional conduct by misstating facts and the appropriate standard of care. He said his testimony was professional.
In November 2003, the board suspended Dr. Lustgarten's North Carolina medical license for one year, but he fought the suspension in court. In 2006, an appeals court reversed the board's discipline.
After the case, the board revised its rules to more clearly outline what type of behavior by experts might result in license revocation, said Thomas Mansfield, the board's legal department director. Since the Dr. Lustgarten case, no disciplinary actions against experts have been taken, he said. "It appears to not be a problem," Mansfield said.
Organized medicine steps in
The American Academy of Emergency Medicine has a unique approach for dissuading and exposing alleged unethical testimony by doctors -- it publishes testimony online.
The idea came to Dr. Blumstein after several reports of outrageous medical liability testimony by AAEM members, he said. Cases are submitted by members, reviewed by the AAEM and published on the academy's website under the headline, "AAEM Remarkable Testimony."
The court documents are public record, and viewers can read complete transcripts for more case information.
The testimony sheds light on statements provided by expert witnesses in emergency medicine, Dr. Blumstein said. Like most physician organizations, the AAEM provides members with guidelines on ethical expert conduct and has a process to discipline doctors who violate those standards.
The American Assn. of Neurological Surgeons has a strict review program for physicians suspected of unprofessional conduct, including dishonest testimony. Since the program's inception in 1983, the association has taken 68 disciplinary actions, including about 45 related to improper witness testimony, said Russ Pelton, former general counsel for the AANS. Penalties include letters of censure, suspension and expulsion by the association.
Such disciplinary actions are reportable to the National Practitioner Data Bank and can impact physician privileges, said John Hutchins, associate general counsel for the American Academy of Neurology.
From 2004 to 2009, the AAN investigated 22 complaints of alleged improper expert witness testimony of its members. Discipline was recommended in four of the complaints, with action being taken against two members. The other two members resigned in lieu of punishment.
"Medical associations, in general, are very aware of [expert witness issues] and are working very hard to prevent improper testimony," Hutchins said.
American Medical Association policy states that testimony a physician gives as an expert witness is considered to be the practice of medicine. The Association encourages state medical societies to work with licensing boards to develop disciplinary measures for physicians who provide fraudulent testimony.
At the AMA Annual Meeting in June, the Association approved a report outlining model legislation for expert witnesses. The report said doctors giving testimony should be experienced in the same discipline as the defendant, be recognized by the American Board of Medical Societies or an equivalent board, or have devoted a substantial portion of time teaching at an accredited medical school in relation to the medical care that is at issue within five years of the defendant's alleged negligence. (See correction)
Courts keeping a watchful eye
Recent court decisions also have helped hold experts more accountable for what they say.
In July, the 8th U.S. Circuit Court of Appeals ruled that a Minnesota ophthalmologist was not qualified to give an opinion about the care provided by an orthopedic surgeon.
The surgeon, Paul Huddleson, MD, was accused of failing to warn a patient about all possible surgery risks after a patient became blind after surgery, court records show. Dr. Huddleson requested that the case be dismissed based on Minnesota law, which requires that experts be experienced in the same specialty as defendants.
The appellate court said the plaintiff's expert witness had no practical experience in orthopedic surgery and was not suited to discuss surgery risks. The court dismissed the case.
In May, the Idaho Supreme Court ruled that an out-of-area expert's testimony against a cataract surgeon accused of negligence was inadmissible. The surgeon, Scott Pressman, MD, was accused of failing to warn a patient about a drug's possible interaction with surgery. Dr. Pressman denied any wrongdoing.
The high court said the expert witness, an ophthalmologist, was not familiar with the local standard of care, and that his expertise with the national standard was insufficient for the case.
Dr. Segal, of Medical Justice, said another approach to curbing unethical testimony is having doctors address lawsuits with patients before they happen.
Medical Justice encourages its members to have all patients sign an agreement to use an ethical expert if a lawsuit arises. Experts must adhere to the ethical code of their professional society. The method has resulted in a reduction in lawsuits against members, Dr. Segal said.
No single approach has completely solved the problem of unethical expert testimony, Dr. Andrew said. But efforts by lawmakers and others have put expert witnesses under a microscope more than ever.
"There is still a lot of room for improvement," she said. "But every little bit helps."