High standard needed for expert witnesses

The AMA will develop voluntary affirmations of its principles that those who testify could sign and will identify standards for response to false testimony.

Posted July 12, 2004.

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Medical expert witnesses represent both what's broken and what still works in a medical liability system at the crisis point. Unethical expert witnesses can do much to ensure an unjust verdict, while honest testimony can help uncover true fault or vindicate the innocent.

In the way the system is supposed to work, physicians bring to the courtroom a knowledge of medicine that no one else can provide. For that reason, doctors have a professional obligation to lend their expertise to the courts. Without physician participation, medical cases could not be tried effectively, and the result would be an even worse liability climate.

But for the legal system to function properly, medical witnesses -- either for the plaintiff or the defense -- must hold themselves to the highest ethical standards. Among these are accuracy, honesty and objectivity.

Organized medicine understands this reality, and many medical societies, including the American Medical Association, have established guidelines for expert witnesses. Indeed, at its Annual Meeting last month, the AMA passed a Council on Ethical and Judicial Affairs report that provides greater guidance to physicians testifying in legal proceedings. This valuable document builds on the AMA's already strong policy and on the efforts of other medical societies.

But sadly, not all physicians will hold themselves to these principles. That's why organized medicine has a critical, active role to play in ensuring that expert testimony is honest. Many medical groups have embraced this duty.

Several national specialty societies -- including the American College of Obstetricians and Gynecologists, the American Academy of Orthopaedic Surgeons, the American Society of Plastic Surgeons and the American College of Surgeons -- have adopted policies that ask their members who serve as witnesses in medical liability litigation to voluntarily sign an affirmation that they will adhere to the society's expert witness principles.

These affirmations are a useful tool. They bolster the credibility of physicians on the witness stand who have signed them and raise questions about those who have not.

Now the AMA, under policy passed last month, will develop with the help of other medical societies a similar voluntary form indicating that the signer will follow the Association's standards for expert witnesses.

The AMA also will work to identify ways to report unethical testimony and develop common standards for responding to reports of false testimony.

A few medical societies have led the way in this regard, even taking action against members over their testimony. This approach is not without controversy, but it has already weathered at least one legal attack.

In 2001, the 7th U.S. Circuit Court of Appeals ruled that the American Assn. of Neurological Surgeons could suspend a member after a hearing showed that he had given improper testimony as an expert witness in a medical malpractice trial. The court went so far as to state that judges need this sort of help in screening expert witnesses.

Now organized medicine's ability to uphold the standard of this aspect of the profession is again being challenged. A California physician has sued the Florida Medical Assn. and three Florida physicians over an FMA review of testimony he gave in a lawsuit against the three doctors. The examination was requested by the three doctors after they won their case. The FMA has not yet issued its opinion.

The California doctor charges that the review request defamed him and is asking the court to put an end to the FMA program. His attorney stated that it is not organized medicine's role to police expert testimony.

But medical societies are in a unique position to evaluate whether an expert witness has accurately described the standard of care around which a medical malpractice case revolves and has truthfully presented his or her qualifications. Due process must, of course, be used when scrutinizing expert witnesses who have been challenged.

Boiled down to its essence, the giving of medicolegal testimony constitutes the practice of medicine, and it is best monitored by organized medicine.

As CEJA said in its report, doctors who deliver dishonest medical testimony not only discredit physicians as a group, but also endanger the public's trust and undermine its understanding of medicine. That is an injustice that must not be allowed.

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