Mississippi board approves expert witness regulations

Mississippi's medical board has adopted standards to regulate physicians who testify as expert witnesses, the latest step in a trend by states and medical organizations to make doctors more accountable for what they say as medical experts in courtrooms.

Violators who have Mississippi medical licenses could lose their licenses or pay up to $10,000 for the board to investigate them. Doctors from other states who give false testimony in Mississippi could be prohibited by court injunction from giving further testimony or have their state boards notified.

"All these regulations do is require the medical expert to follow the law and be honest and be ethical," said Philip Merideth, MD, a lawyer and vice president of Mississippi's Board of Medical Licensure. "This is about protecting the public. This is not about going after plaintiffs' experts."

In recent years, medical societies and other organizations have pushed for greater scrutiny of physicians who provide expert witness testimony. American Medical Association policy states that testimony a physician gives as an expert witness is considered the practice of medicine.

The Association encourages state medical societies to work with licensing boards to develop effective disciplinary measures for physicians who provide fraudulent testimony.

"We believe [providing expert testimony] is the practice of medicine, and it follows that there should be supervision by state medical boards," said Cecil B. Wilson, MD, new chair of the AMA's Board of Trustees.

The AMA is not alone. A resolution passed by the Federation of State Medical Boards in May 2004 states that fraudulent testimony from medical experts should be considered unprofessional conduct by medical boards.

An FSMB guide was modified to state that false, fraudulent or deceptive expert witness testimony by a physician should constitute unprofessional conduct. The guide is used to help states adopt new medical practice acts or amend existing laws.

The federation is not sure how many state boards have regulations on physician expert witnesses. But FSMB officials said many states spell out expert qualifications, particularly for medical malpractice cases.

A minority of medical boards consider expert testimony to be the practice of medicine and thus under their jurisdiction for evaluation and discipline, according to an article in the Number 3, 2004, Journal of Medical Licensure and Discipline, an FSMB publication. Few doctors have been disciplined for unethical testimony, the article said.

One case that brought national attention involved Florida neurosurgeon Gary Lustgarten, MD, who gave testimony as a medical expert in a North Carolina malpractice suit.

One of the doctors in the suit filed a complaint against Dr. Lustgarten. The North Carolina Medical Board initially found Dr. Lustgarten had engaged in unprofessional conduct by misstating facts and the appropriate standard of care. The board revoked his North Carolina license in 2002, but the doctor appealed. A judge reversed most of the board's grounds for discipline, but agreed with one finding and sent that issue back to the board. In November 2003, the board suspended Dr. Lustgarten's license for one year, but the doctor fought the suspension in court. This month, Dr. Lustgarten won a court victory when the North Carolina Court of Appeals reversed a lower court order that had affirmed the board's discipline.

Miss. docs face fees, license actions

Dr. Merideth of Mississippi's medical board said no one case prompted his board to adopt new regulations. He said the board was moved to act due to a lack of regulation of medical expert activities by physicians.

The regulations, adopted May 18 and effective July 1, state that physician medical experts must comply with medical ethics principles, including the AMA's. Expert witnesses cannot make or use any false, fraudulent or forged statement or document. They also cannot accept a payment that is contingent on a diagnosis or opinion or outcome of the case.

Among the disciplinary actions the medical board can take are suspending or revoking the doctor's Mississippi license, or assessing up to $10,000 for costs of the board to investigate a Mississippi-licensed physician.

Jackson, Miss., attorney George Yoder said the regulations would discourage physicians from testifying in liability cases. He said he would have a harder time finding doctors to serve as expert witnesses.

"I don't know that the board has expressed a clear motive in why they're doing this," Yoder said. "I think the big reason for this is to cut down on medical malpractice lawsuits."

Dr. Merideth disagreed. "The board has no interest in having a chilling effect on medical experts. This is about policing physician conduct."