Court erred in expert witness ruling

Regarding "Florida Supreme Court: Expert can't rely on others' views" (Article, Dec. 4, 2006): In a stunning ruling, the Florida Supreme Court has demonstrated how poorly the judiciary understands what medical expert witness testimony is all about. It recently ruled that an expert witness cannot rely upon the opinions of others in formulating what the standard of care is.

When an expert was questioned in court about how she concluded what the correct standard was in a urological case, she answered honestly (and altogether ethically in my view) that it was based in part upon discussions with other urologists. The court threw out her testimony, reaching the utterly specious conclusion that by doing so, she had introduced hearsay.

One can only wonder how these judges think we learn the standards if not from our colleagues. Would it surprise them to find that everything we know we were taught by some authority? May we now expect that testimony will be out of order when we base opinions on journals, textbooks and educational courses?

The whole episode reinforces my long-held belief that courts and judges do not have a clue as to how the processes of determining standards of care are evolved. There needs to be a precise definition of what ethical medical testimony comprises. Contrary to the statement in the article attributed to [the plaintiff's] attorney, it is not an expert witness's responsibility to state how he would handle a case. It is his responsibility to become familiar with the prevailing standard and to state that clearly to a jury. He cannot do that unless permitted and encouraged to communicate with colleagues. One can only hope the system can correct this obvious error and permit experts to properly perform their tasks.

David M. Priver, MD, vice president, Coalition and Center for Ethical Medical Testimony, San Diego

Note: This item originally appeared at http://www.ama-assn.org/amednews/2007/02/19/edlt0219.htm.