How physicians can protect themselves from unethical testimony by an ‘expert’ witness.
If you have ever been sued frivolously, you know the opposing counsel found an “expert” willing to testify that the standard of care was breached. While most expert witnesses are objective and provide unbiased opinions, there are some who defy logic and find breaches where none exist. Such charlatans exist on the fringes of medicine, using their board certification to convince juries they are indeed experts. And they make a nice living doing so. We want to explain the safeguards that are in place to protect you if you are ever sued.
The modern Federal Rules of Evidence rule lays out the legal concept for expert testimony and gives trial judges the authority to exclude incorrect or irresponsible experts and evidence. Two additional rules-the ‘general acceptance’ test and the ‘Daubert test’ -were incorporated into the Federal Rules of Evidence in 2000 and give “trial judges authority to exclude expert testimony that is based on bad science or faulty reasoning.” Trial judges, though, don’t go to medical school. They are unlikely to exclude testimony based upon their understanding of the medical nuances of a lawsuit.
Second, your defense attorney can discredit a plaintiff’s expert if said expert did not thoroughly review the medical facts of the case and all available relevant information. (This review has been interpreted by courts to include the requirement that experts read all deposition testimony.) Further, your attorney can use the guidelines for expert witness testimony established by your professional society. The American Academy of Family Physicians’ policy on Physician Expert Witness in Medical Liability Suits can be accessed here.
Third, the groundwork laid by the American Medical Association (AMA) is helpful. Since 1998, AMA has considered expert witness testimony to be the practice of medicine. This was one of the earlier steps to police expert witnesses, creating a path by which expert witnesses might be held accountable for unbiased or inaccurate testimony. While it seems likely that this standard curtailed the behavior of some plaintiff ‘experts,’ we do not have data to prove such.
Finally, ACOG and other professional associations have adopted guidelines for ethical conduct and attendant enforcement tools. They do not want members who testify blurring the lines between medical malpractice (i.e., negligence) and medical maloccurence (i.e., a bad outcome unrelated to the quality of care provided). Unfortunately, this fourth safeguard comes into play after the conclusion of a trial if a physician reports his/her concerns to the professional society. Its ethics committee will review the complaint along with de-identified testimony to determine if the society’s ethical code of conduct has been breached. If the ethics committee finds merit, it may ask for a hearing in which both parties can attend. Potential disciplinary actions for inappropriate testimony include published reprimand, suspension, a ban from the professional society, and reporting of the plaintiff witness’s misdeed to the National Practitioner Data Bank.
Both of us have borne witness to questionable plaintiff witness testimony, and we feel these guidelines are underutilized tools. If you have concerns about keeping a complaint confidential, check with your professional society to determine whether anonymity is an option.
Our ask of you
Combatting charlatan behavior is an ongoing effort, and professional societies need our help to affect change. We hope you never are named in a frivolous lawsuit. If you are, however, and the opposing counsel’s “expert” seems not so expert, we hope these four safeguards are of some benefit. Together-physicians, defense attorneys, and practice administrators-we can make a dent in reducing frivolous lawsuits.
Sean P. Byrne is a director at Hancock Daniel, a national healthcare law firm. Sean focuses on medical malpractice defense work. He’s also an adjunct associate professor at the University of Richmond where he teaches courses on trial skills and healthcare law. Sean may be reached at firstname.lastname@example.org.
Lucien W. Roberts, III, MHA, FACMPE, is administrator of Gastrointestinal Specialists, Inc., a 27-provider practice in Central Virginia. Despite standing a statuesque 5’8”, he eschewed a promising basketball career to help doctors run their practices. He may be reached at email@example.com.