Expert witnesses need scrutiny: The Tennessee approach
■ Improper medicolegal testimony contributes to rising medical liability costs and mistrust in the legal system. It must be kept out of the courtroom.
Posted Dec. 19, 2005.
A serious concern about the tort system is the questionable testimony provided by some physician witnesses who are true experts only in their ability to collect hefty fees from lawyers.
When courts don't do enough to weed out the "junk science" being presented as fact -- and they often don't -- it drives up medical liability costs. It's an unfair burden for doctors and a threat to access to care for their patients.
Now judges in one Tennessee county who are unsure of whether a physician's expert witness testimony is a jewel or junk have an independent resource they can turn to for guidance.
In October, the Medical Society of Chattanooga and Hamilton County, the Chattanooga Bar Assn. and a state circuit court judge kicked off a pilot program that allows judges to turn to an expert to help them figure out whether a witness's opinion should be allowed to stand up in court or whether it is bunk.
The rules were already in place, but judges rarely used them. Under this pilot program, those on the bench who are faced with deciding whether an expert's testimony should be allowed in court -- a particularly tricky decision when there are dueling expert witnesses -- can turn to the medical society to recommend impartial witnesses to help sort out what is credible.
To ensure fairness, the medical society will know only the bare minimum about the case. The independent expert can't be insured through the same company as the defendant doctor and must, at minimum, live in a bordering state.
After years of complaining about expert witnesses who seem willing to say anything for a buck, physicians should pay close attention to the Tennessee effort to offer judges guidance in an area where it can be tough to determine fact from fiction if one doesn't have a medical background.
Along with a $250,000 cap on noneconomic damages awarded in medical malpractice lawsuits, good-faith expert witness testimony is a key component of effective medical liability reform.
The AMA has long supported appropriate expert witness testimony.
Physicians should -- as a matter of public interest -- serve as impartial expert witnesses. That being said, false testimony is intolerable, and physicians who present junk science in the courtroom should be disciplined.
To ensure that physicians receive fair trials, AMA policy calls for doctors testifying in the courtroom to be held to the same medical standards as physicians in the exam room or operating room, including being subject to peer review. The AMA also supports state medical societies working with state licensing boards to develop effective disciplinary measures for physicians who provide fraudulent testimony.
To provide a fair medical liability system, AMA policy says experts testifying in a medical liability case should have a comparable education, training and occupational experience in the same field as the defendant, or they should have specialty expertise in the disease process or procedure performed in the case in which they are testifying.
That occupational experience should include active medical practice or teaching experience in the same field as the defendant. And that must have been within five years of the date of the occurrence giving rise to the medical claim at issue in the courtroom.
Also, expert witnesses should be certified by a board recognized by the American Board of Medical Specialties or the American Osteopathic Assn., or by a board with equivalent standards, according to AMA policy.
Some medical societies are already monitoring and helping discipline doctors who provide improper testimony. At the AMA's recent Interim Meeting, delegates applauded -- literally -- the Tennessee pilot program. The AMA will continue to monitor the progress of the initiative and will report the findings back to the House of Delegates. Meanwhile, the Tennessee program appears to be another step in the right direction.
More scrutiny of expert witnesses in the courtroom will result in less junk science in the courtroom. And that, combined with other reforms, ultimately will lead to a tort system that inspires greater trust and confidence, and fewer liability premium increases.