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A supercharged liability environment brings growing scrutiny of physician expert witnesses

Advocates call for peer review and tougher state oversight to safeguard physicians

From the May ACP Observer, copyright 2004 by the American College of Physicians.

By Gina Rollins

They are a prominent feature of every case alleging medical malpractice: expert witnesses, physicians who render an opinion on whether or not a colleague has upheld standards of care.

Expert witnesses have long been key players in all phases of liability cases, from reviewing cases to testifying in court. Only a physician, the reasoning goes, can judge the quality of care another physician has rendered.

But in the high-pressure environment that continues to surround the issue of medical liability, the testimony of expert witnesses is attracting new scrutiny.

With so much at stake in malpractice cases, groups including national medical societies and state and local medical associations are taking a fresh look at the physicians who serve as expert witnesses. That scrutiny includes new efforts to subject expert witness testimony to peer review, as well as proposals to bring disciplinary actions against physicians who provide inappropriate testimony.

Potential abuse or moral duty?

Ask experts what can go wrong with expert witness testimony, and they point to several different types of abuse.

Physicians can spend too much time in court and not enough time actually practicing the specialty about which they're testifying. Out-of-state witnesses may not be familiar with local standards of care, while some witnesses may simply give false or misleading testimony.

Critics charge that lawyers might file fewer frivolous lawsuits if expert witnesses did not claim those cases had some merit. With median jury awards in medical malpractice cases averaging about $1 million (see "National compensatory jury-award median in medical malpractice cases") and nearly 20 states struggling with a severe liability insurance crisis, the issue has a real impact on physician practice.

Despite concerns about occasional abuse, everyone agrees that physicians have a clear role in the court room. In 1990, for example, ACP issued guidelines claiming that physicians have a "duty" to serve as witnesses, a position echoed by a number of physicians.

Roger E. Nieman, FACP, chief of infectious diseases at Abington Memorial Hospital in Abington, Pa., decided to serve after his own experience as a defendant 13 years ago. "The experience was so miserable and unfair, I said if there was anything I could do for the side of doctors, I would do it," he said. He estimated that he has testified as an expert witness about 25 times—and said that in about 10% of the cases that he's asked to review, "I tell the defense lawyer I can't defend it."

Other physicians feel a strong commitment to parsing out right from wrong in medical malpractice. "A lot of elderly people are hurt, and the courts need help determining whether a crime has been committed," said geriatrician Frank Randolph, MD, director of geriatric medicine at Arrowhead Regional Medical Center in Colton, Calif.

He pointed out that he also testifies on behalf of defendants, as well as plaintiffs. "There are also people who have accused physicians of elder abuse when the doctors were just delivering medical care that had a bad outcome," Dr. Randolph said. He said he has been involved in about 50 cases over the past 10 years.

"We live in a very mixed world, with many conscientious physicians offering truthful and expert judgment on matters, and others providing testimony that's less evidence-based," said William E. Golden, FACP, Chair of the College's Ethics and Human Rights Committee and professor of medicine and public health at the University of Arkansas in Little Rock. "It causes confusion and problems for both plaintiffs and defense."

Issues of expertise

Few critics argue with the motives of physicians who want to offer their expert opinion to help a patient or a colleague. They say that problems begin when physicians overstep their expertise.

In its 1990 guidelines, for example, ACP said that physicians who serve as expert witnesses should either be board certified in the specialty involved in the case or "fully trained in [that] specialty or subspecialty." The guidelines also recommended that physicians "be actively involved in the clinical practice of the specialty" that's at the heart of the case for at least three of the previous five years.

Guidelines revised earlier this year by the American College of Surgeons go even further, recommending that physicians serving as expert witnesses be prepared to document and disclose the amount of money they earn from that service and the amount of time they spend as expert witnesses.

Many physicians already take precautions when deciding if it's appropriate for them to offer an opinion. Cardiologist Richard J. Carroll, ACP Member, an expert witness who has served for both plaintiffs and defendants and is executive medical director for quality at Adventist Health System in LaGrange, Ill., said he might recuse himself from certain cardiology cases.

"If lawyers asked me to give an opinion on a refined area of electrophysiology, I wouldn't consider myself qualified," he explained, "even though I have certification as a cardiologist."

Super-specialized cases don't pose the only dilemma. "A patient in a nursing home can wind up with a lot of different physicians: a family physician, an internist, a psychiatrist, a retired otolaryngologist," Dr. Randolph pointed out. "Should I be the judge of a retired psychiatrist, or should a retired psychiatrist be the judge of me?"

An even bigger question concerns not just the types of cases in which physicians testify, but how many cases they handle. The question remains wide open, in part because the guidelines of most societies—the College included—don't spell out any specific thresholds.

Some physicians who serve as expert witnesses say that the very nature of the work provides limits. "It's very taxing," said Mark H. DeLegge, MD, a gastroenterologist and associate professor of medicine at the Medical University of South Carolina in Charleston who has served as an expert witness. "It requires that you know not only the subject matter in depth, but you have to sort through reams of paper to see if there's a problem with the care."

California's Dr. Randolph said he agrees, estimating that he spends about 30 hours on each case reviewing documents. "When are you going to do that after working 60 hours a week?" he asked.

Another major question is how often should retired physicians work as experts—and for how long after they retire. Many who are familiar with expert witness services say that retired physicians have a legitimate role as expert witness—up to a point.

"It's not inappropriate that [they] participate for a time," said Dr. Carroll. "But perhaps there should be time limits."

Credentialing and peer review

One intriguing idea in its infancy is to establish national standards and credentialing for physicians who serve as expert witnesses. Dr. Carroll from Adventist Health System, for example, said he would prefer a blanket process, "not an individual determination each time for every case."

Others, however, are not so sure. "It's premature to move into the area of formal credentialing of expert witnesses at the national level," said Theodore R. LeBlang, JD, professor and chair of the medical humanities department at Southern Illinois University School of Medicine in Springfield, Ill. "This is an area best regulated by individual states, which are now working to develop statutes to provide standards for expert witness qualifications."

According to the National Conference of State Legislatures, some states have already moved to develop such statutes. In Kansas, for instance, half of an expert witness' professional time over the preceding two years must have been devoted to clinical practice.

An even more controversial movement is to increase pressure to subject expert testimony to peer review. Some specialty societies, for instance, have instituted peer review for members charged with false testimony. In the mid-1990s, an appellate court upheld the right of the American Association of Neurological Surgeons, for instance, to suspend for six months the membership of a physician for providing "inappropriate" testimony as an expert witness.

The AMA wants physicians to go a step further. In a resolution passed last year, the group encouraged state medical societies to work with state licensing boards to develop "effective disciplinary measures" for physicians who provide fraudulent testimony.

At least one state board—North Carolina's—has already taken such an action, suspending the license of one physician last year as a result of testimony he gave.

The AMA recommended that measures include granting temporary licenses to out-of-state physicians to allow them to offer expert witness testimony on a per-case basis, making an expert witness subject to peer review in that state from the state board and local medical associations.

That particular initiative grew out of events in Florida, where the Florida Medical Association (FMA) in 2002 instituted a peer-review process for physician members licensed in the state.

"The doctors felt that there was a lot of expert testimony being given in Florida that was improper, that somebody should attempt to take a look at it and make a decision on whether it was appropriate or not," said Jeff Scott, JD, the FMA's associate general counsel.

The FMA is reviewing about 20 cases involving expert testimony, he said. Two others have been resolved: In one, the expert's testimony was deemed appropriate, while in the other, it was not. (Any disciplinary action against the testifying physician is pending.)

Mr. Scott also said that the FMA has helped introduce bills in the Florida legislature in the last two consecutive years that would require out-of-state physicians to be issued special certification or licensure in the state before testifying. He noted, however, that those bills have yet to pass.

Chilling effect?

Proponents of the Florida initiative hope it will curb what they see as abuses of the legal system. Others see merit in such an initiative, but only under certain conditions.

"The key question is how will the peer review process be conducted and by whom?" said Southern Illinois University's Mr. LeBlang. "It needs to be a carefully circumscribed process so that individuals are treated fairly. The bar needs to be set quite high in establishing testimony that's actionable."

Others think expanded peer review procedures could have a chilling effect on the ability of reputable expert witnesses to continue to serve.

"There's a real possibility that physician participation as expert witnesses will decrease significantly," said Adventist's Dr. Carroll. "I think a lot of doctors will say, 'I don't need this.' " He said he advocates using expert panels to screen the merits of malpractice cases before any action can proceed.

According to ACP's Dr. Golden, the College's Ethics and Human Rights Committee at this time has no plans to develop a formal system of peer review for professional testimony.

Thus far, the College has not received any complaints about members' expert witness activities. If it did, noted Lois Snyder, JD, Director of the College's Center for Ethics and Professionalism, it would address those in the same way it handles general complaints on any ethical issue.

In the meantime, two fledgling organizations have been founded in part to help physicians explore peer-review recourse should they encounter dubious expert testimony.

One group, the 500-member Medical Justice, provides services to physicians who feel they've been wrongfully sued, helping them file complaints with professional societies or even countersuits against plaintiffs, as well as plaintiffs' attorneys and experts.

"There is an evolving concept that equates expert witness testimony with the practice of medicine," said Medical Justice's founder and chief executive officer, neurosurgeon Jeffrey J. Segal, MD. "The purpose is to put some teeth into the process associated with expert witness testimony."

The other organization, the 200-member Coalition and Center for Ethical Medical Testimony, is dedicated to helping expose physicians who give false testimony as witnesses or use false credentials, said Louise B. Andrew, MD, JD, one of the group's co-founders and an emergency physician in Vancouver, B.C.

"We try to educate physicians," Dr. Andrew said. "If you have documentation and sworn testimony that's false, you can take it to the testifying physicians' medical societies, their medical boards and their specialty certification boards."

And in the absence of formal mechanisms to police expert testimony, some physicians are careful to take steps on their own to deal with a complicated expert system.

California's Dr. Randolph, for instance, has developed an agreement he requires both plaintiff and defense attorneys to sign.

"I reserve the right to discontinue to be a witness," he said, "unless I have all the records I want and am sent all pertinent information."

Gina Rollins is a freelance writer in Silver Spring, Md.

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