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doi: 10.1097/01.NT.0000407803.71088.2f
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Legal-Ease: Medicine on the Stand: States Set Standards for Expert Witnesses

Shaw, Gina

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On July 1, Florida Governor Rick Scott signed into law H.B. 479 — a bill designed to place restrictions on the use of expert witnesses in medical malpractice cases. The law requires out-of-state physicians to obtain a certificate from the state before being permitted to testify there, and gives the state board of medicine the authority to discipline any expert witness who is found to have provided deceptive or fraudulent expert witness testimony.

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Florida's move brings to at least 30 the total number of states that have passed laws governing how expert witnesses may testify in medical liability cases.

“I was taken by how much legislative activity there has been on this issue,” said Richard Beresford, MD, JD, professor of neurology at the University of Rochester School of Medicine and a former member of the AAN Grievance Committee and Fair Hearing Panel Committee, which handle complaints filed against AAN members, including those having served as expert witnesses.

“Previously, this issue has been handled by the rules of evidence, and by trial court judges making these decisions without specific statutory guidance. I would assume that the trend toward legislation is in large part a response to the so-called malpractice crisis. The legislators may see bad expert witnesses as contributing to the problem.”

The laws that have been passed have varying degrees of specificity. Florida's is fairly broad, requiring only the in-state certification, which puts doctors who testify under the jurisdiction of the state medical board (at least if they want to continue to hold that certificate). Maryland's law, on the other hand, features a “20 percent rule”: it blocks a doctor from testifying if serving as an expert witness takes up more than 20 percent of his professional time annually.

In 2009, Arizona's Supreme Court upheld that state's expert medical witness law, which was supported by the American Medical Association. Its mandate is even more specific than Florida's: it requires expert witnesses to have devoted most of their professional time during the year preceding the incident to active clinical practice or teaching in the same specialty as the defendant physician. If the defendant physician is board-certified, the expert witness must also be board-certified. The law, according to the state medical society, contributed to a 20 percent drop in malpractice filings since its passage in 2005.

This sounds like a good thing — but is it necessarily so? “The trick is to try and balance appropriate regulation with the genuine need for expert witnesses in medical liability cases,” said Daniel Larriviere, MD, JD, vice chair of neurology and the residency program director at Ochsner Medical Foundation in New Orleans, and a member of the Grievance Committee. “In most states, without an expert, malpractice actions can't go forward. If you make the burden too onerous, you've removed the right of the injured person to sue.”

Several years ago, a South Carolina law was struck down as doing just that. It mandated that all expert witnesses testifying in the state had to have a South Carolina medical license. That, the state supreme court found would “impede our administration of justice,” because it was likely that a sufficient number of relevant experts licensed in the state could not be found.

Dr. Larriviere is a bit skeptical that requirements for expert witnesses to obtain in-state certifications that put them under the jurisdiction of that state's medical board will have much of an impact. “Sure, if I testified egregiously in Florida, they could bar me from testifying in Florida again,” he conceded, “but I'm not sure whether that would have any effect on my Virginia or Louisiana licenses.”

“State medical boards are classically underfunded and overworked, so I don't know how effective this mechanism will be,” he continued. “If another state did find against a physician who testified there, might they then communicate with his or her medical board? Yes, but it would be incumbent upon the state medical board where that doctor resides to investigate, and they need to have the time and the resources to do so.”

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PROFESSIONAL VS. LEGAL STANDARDS

The Academy has taken a strong stance in favor of high standards for medical expert witnesses for more than two decades; its first set of guidelines for expert witnesses were put in place in 1989, and they were substantially revived in 2005.

Over the past five years (2006-2010), the Academy's Grievance Committee has received 19 complaints alleging violation of the expert witness guidelines, representing roughly one-third of the total of 59 complaints brought to the committee during that time. Of those, says Academy Associate General Counsel John Hutchins, JD, 11 were dismissed at the “grievance” level (the first level of action), and two were dismissed at the “fair hearing” level (the second and third steps, in which a three-member committee reviews the complaint after the respondent submits a written response and conducts a hearing with the respondent). For two complaints, the panel recommended action: one received a private letter of reprimand and one was suspended from the Academy for a period of time. Members were also notified, via a public notice in AAN News, that the member had violated the Academy's Code of Professional Conduct and its Qualifications and Guidelines for the Physician Expert Witness. (Four complaints about expert witnesses that were brought to the Academy in 2010 are still making their way through the process.)

“Most of the laws that I've seen generally seem to follow standards like those the Academy has put together,” said Dr. Beresford. “I do think that it's sending a message to the medical community that it's not a free-for-all when you go to court. You have to know what the rules are, and you have to play by them.”

But some laws go rather further than those that medical specialty societies like the Academy do in setting standards for expert witnesses. In Arizona and Michigan, the law requires that expert witnesses must practice in the same specialty as the defendant physician. That's not necessary, said Michael Williams, MD, medical director of the Sandra and Malcolm Berman Brain & Spine Institute and director of the Adult Hydrocephalus Center at Sinai Hospital of Baltimore. Dr. Williams also previously served on the Grievance Committee.

“The Academy is clear that one has to be an expert in the topic, but does not necessarily have to come from the same specialty. To suggest that ‘same specialty’ is the best way to qualify an expert witness is short-sighted, because it overlooks the fact that there are experts from other specialties who may be qualified. But when those experts testify, they have to know the boundaries of their knowledge and expertise and not testify beyond that.”

Dr. Williams cited his own field as an example. “My clinical expertise is in the field of adult hydrocephalus. I know a lot about it and have worked with neurosurgeons all my career to care for patients with adult hydrocephalus. At hydrocephalus scientific meetings, most of my colleagues are neurosurgeons; if I were asked to be a witness either for or against a neurosurgeon in a case relating to adult hydrocephalus, I would be seen as an appropriate expert witness based on Academy standards. But I could not, for example, say what I would do in the operating room. I don't operate. I can talk about indications for surgery, but not surgical techniques.”

The Academy calls it an important civic duty of physicians to offer good expert witness testimony. “When done properly, expert witness testimony is a benefit to society. Its purpose is to help inform the judicial system — court, judge, or jury — about technicalities of the practice of medicine that might otherwise be beyond their comprehension,” said Dr. Williams. “I think that legislation is the wrong way to get a handle on the problem of poor expert witness testimony, because laws can be so broad in scope that they impede justice. I think guidelines like the Academy's are better ways to address the problem.”

The outcry for state action might be lessened even further if medical societies in different states worked more cooperatively. “There's no reason that these societies have to operate in isolation from one another,” said Dr. Williams. “If there were broader cooperation in sharing findings from review processes, it would better serve the needs of plaintiffs and defendants for good expert witnesses. If the state of Maryland has identified a bad expert witness, for example, there are still 49 other states that person can go to. We should look more broadly in terms of cooperation instead of trying to fix things for a single state of specialty, focusing on the overall need of society for expert witness testimony done right.”

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AAN GUIDES TO PROFESSIONAL CONDUCT

* The AAN code of professional conduct is available: www.aan.com/globals/axon/assets/3968.pdf

* Hutchins JC, Sagsveen MG, Larriviere D. Upholding professionalism: The disciplinary process of the American Academy of Neurology. -Neurology 2010; 75: 2198-2203; http://bit.ly/qpqU19

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AIRING GRIEVANCES

The AAN grievance process, which includes review of expert witness testimony, remains confidential unless, after due process, the member against whom the grievance has been filed is indeed found to be in breach of Academy standards and disciplinary action that includes public notice is recommended by the Fair Hearing Panel Committee and affirmed by the Executive Committee of the AAN Board of Directors.

That seems to be the case with most professional medical societies — with the exception of the American Academy of Emergency Medicine (AAEM). On a section of its website called “Remarkable Testimony,” the AAEM publishes excerpts of testimony. “Cases are submitted by members, reviewed by AAEM's Tort Reform Committee and, if approved by the reviewers, posted on the website along with a complete copy of the testimony and commentary to help guide readers,” explains a letter from the AAEM to members whose testimony may appear there. The member is given an opportunity to respond only after the testimony is posted.

AAEM President Howard Blumstein, MD, said that the “Remarkable Testimony” site received largely positive responses from the membership when it was posted several years ago. (It hasn't been updated since then.) “We had asked for submissions of expert witness testimony that really stood out, and we got a couple of dozen submissions. A lot of them weren't that remarkable. The testimony was reasonable, but the doctors were just so angry about it and they let their emotions cloud their judgment. But the ones we posted, we felt, really stood out. Members and non-members alike gave us positive feedback and suggested that it should have been done a long time ago.”

Members of the AAN Grievance Committee say that this is not a practice that the AAN would be inclined to pursue. “I can understand the impulse to take something that someone has said and put it out there for everyone to see,” Dr. Larriviere said. “But in general there's a real risk of publishing things that look, on their face, to be questionable or egregious, that in the context of the entire line of questioning may be less so. And for physicians who practice based on reputation, if someone puts something on a website that may look bad, but in context isn't so, that physician's reputation is potentially damaged and I'm not sure where they can get an appropriate hearing. That might make people less willing to testify.”

Dr. Williams notes that the AAEM approach is in stark contrast to the AAN's. “As far as I can tell from looking at the website, there is no due process. It looks like nothing more than a public bulletin board for one member to file a complaint against another, and then have a debate back and forth in letters posted to the Web page.”

Some people attempt to use the AAN grievance process as a form of retaliation. “We're very mindful of that,” Dr. Williams said. “We've had complaints filed that alleged faulty expert witness testimony, and then we reviewed it and said, ‘Wow, that was really good testimony.’ We resolve complaints like those and no one hears about them, so the respondent is protected. This website disturbs me because no such protection is evident in its description of how it works. I'm not aware of any other society that does this.”

©2011 American Academy of Neurology

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