Program seeks review of expert witnesses

Under the Tennessee pilot system, a judge will look to a third-party physician to evaluate witnesses' opinions and help determine if they should be admissible.

By Mike Norbut — Posted Nov. 21, 2005

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Physicians long have complained about questionable expert witnesses influencing jury decisions in medical liability cases. Now one Tennessee court is trying to keep what doctors call "junk science" out on both sides of the aisle.

Some doctors and lawyers collaborated to design the system, in which an independent professional can help determine whether expert testimony in a medical liability case is credible.

In a spirit of cooperation that has been virtually absent throughout the national medical liability crisis, the Medical Society of Chattanooga and Hamilton County, the Chattanooga Bar Assn. and a state circuit court judge in late October launched the pilot program based on existing court evidence rules. The seldom-used rules allow a judge to call on an expert to help him or her determine if a witness' opinion should be admissible in court.

The rules can come in handy, particularly for medical liability cases, where experts from each side often have opposing viewpoints on how a physician's actions relate to the standard of care. The divergent opinions not only can confuse jurors but also can add time to an already lengthy litigation process, as the court tries to separate scientific evidence from speculation.

Enlisting the help of an independent physician to evaluate expert testimony not only could stop groundless cases before they make it to trial but also could expose a defendant's weak arguments and further protect a patient's case, supporters of the project said.

"We want to see fewer frivolous cases, but we also want to see those folks with legitimate cases get their day in court," said Donald H. Chamberlain, MD, a gynecologic oncologist and president of the Chattanooga and Hamilton County medical society. "This is one of those rare moments in our professional lives when something good has happened, and it's good for everyone."

AMA past president Donald J. Palmisano, MD, was on hand for the program's unveiling to provide his support for the idea. While the medical liability crisis is based on many factors, the Chattanooga program is a "significant initiative" to address one of those causes, he said.

"Junk science masquerades as the truth, but it is a fraud and must be stopped," said Dr. Palmisano, a general and vascular surgeon from New Orleans who also has a law degree. "Masquerades belong at Mardi Gras in New Orleans, not in the courtroom."

Attorneys did not endorse the idea as enthusiastically, but they did recognize that the program was designed to add "another layer to ensure the integrity of the system," said Art Brock, an attorney with Spears, Moore, Rebman & Williams P.C. in Chattanooga.

"Some trial lawyers are a little concerned about losing control of their cases," said Brock, a member of the Chattanooga Bar Assn. who generally represents physicians and hospitals in medical liability cases.

How the program works

Attorneys would not have unfettered access to the third-party expert the way they would with plaintiff or defense witnesses. Under the program, if there are divergent opinions regarding the science in the case, the judge would ask the medical society to supply an independent expert.

The medical society, in turn, has a committee of physicians from varying specialties who can identify experts in the appropriate field.

Program designers installed several safeguards to help keep some distance between the defendants and the third-party experts. The judge gives the medical society only a general area in which he needs an expert, and the panel supplies names without contacting the experts directly. Independent experts can't have liability insurance coverage through the same company as the defendant, but they must at least reside in a contiguous state.

"Every piece to this puzzle has been in place, but the missing piece has been that I didn't know who to call [for expert opinion]," said W. Neil Thomas III, the state circuit court judge in Hamilton County who will use the system. "That's when the doctors said, 'This is something we can help you with.' "

Thomas said he tested the system on a workers' compensation case that already had been decided, just to see how it would work. A physician at Vanderbilt University in Nashville, Tenn., reviewed testimony from both witnesses, and concluded that "the plaintiff's expert should not have been allowed to testify," Thomas said.

"That ended up being a two-week jury trial," he said. "Part of the protocol of this is the minute we realize there are divergent opinions on a medical issue, we want to know about it."

The AMA considers Tennessee to be a state showing signs of a medical liability crisis. The Association counts 20 crisis states where escalating insurance premiums have forced some physicians to retire early, discontinue some high-risk services or move to a state with lower liability premiums. While Chattanooga doctors are excited about the new system's potential to limit frivolous cases, they did not see it as the new face of tort reform.

"We don't want to pretend this is the solution for the medical liability crisis," said pathologist Phil Pollock, MD, immediate past president of the Medical Society of Chattanooga and Hamilton County. "Nor do we want this to be substituted for tort reform in general."

They did, however, see it as a step in the right direction, especially as it pertains to relations between two professions that have shared considerable acrimony as the medical liability crisis has escalated.

"Dogs and cats using the same sandbox is not a bad analogy," Dr. Chamberlain said. "One of the things we discovered through this process is we're really not adversaries, we're just different."

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Getting expert testimony

The Chattanooga and Hamilton County, Tenn., pilot program has a protocol for judges to call on a third-party expert in medical liability cases.

  • When each side plans to use a medical expert, each submits expert witness testimony to the court at least 120 days before trial.
  • If the opinions differ, the judge can ask the medical society's physician panel to identify experts from the appropriate specialty. The defendant physician is not identified.
  • The medical society panel submits names of two or three appropriate physicians who do not have liability coverage through the same company as the defendant and who are from the same or a contiguous state.
  • The court selects a name from the list and submits it to the attorney on each side.
  • If either attorney objects to the expert, there is a hearing. The court has final say on the selection.
  • The independent expert reviews medical expert witness testimony. A McDaniel hearing, which addresses the admissibility of expert witness testimony, is scheduled 60 days before trial.
  • Before the hearing, both sides depose the expert witness.
  • At the McDaniel hearing, the independent expert testifies regarding the witnesses' opinions. The judge then rules on whether the opinions are admissible.

Sources: The Medical Society of Chattanooga and Hamilton County, Chattanooga Bar Assn., and Tennessee Circuit Court Judge W. Neil Thomas III

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