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Expert Witnesses

Reform Starts with Physicians

SoRelle, Ruth MPH

    William Sullivan, DO, JD, came to the Coalition and Center for Ethical Medical Testimony out of personal experience.

    One night, a trauma center surgeon asked him to insert an IV in the arm of a patient who had come in earlier in the evening before Dr. Sullivan arrived. Surgeons and nurses failed to start the infusion, but Dr. Sullivan was successful on the first try. It was his sole interaction with the patient.

    “Unfortunately, the patient died,” said Dr. Sullivan. Later, he found himself named in a lawsuit that said he should have noticed her abnormal vital signs. Other physicians named in the case never saw the patient at all. Later, seven physicians, including Dr. Sullivan, were dropped from the case.

    That led to a lawsuit over the expert testimony that justified naming him and the others in the original lawsuit. His experience with the case ultimately put him into contact with Louise Andrew, MD, JD, an emergency physician who is a founder and the president of the Coalition and Center for Ethical Medical Testimony (www.ccemt.org). The fledgling organization is dedicated to creating by 2015 a legal system no longer dependent on the random testimony of hired expert witnesses to determine for lay juries the standard of care in the practice of medicine.”

    “I know there is a lot of expert witnessing going on that is less than optimal,” said Dr. Andrew. “I say that not only as an observer, but I have been involved in cases myself. I know there are no good guidelines or standards for expert witnesses. People fall into doing it when an attorney calls and asks them to testify.”

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    Often, she said, attorneys do not want to know what the standard of care is. They are advocates, and by giving the physician the information about what side of the case they are on and describing the case from their point of view, they can move that person in their direction.

    “You have heard someone else's opinion,” she said.

    Independent Opinion

    When she testifies, she refuses to listen to the attorneys' accounting of the details. She asks about the deadline and the amount of reading necessary.

    “When I'm finished, I let them know where there is negligence, if there is any. If there is no negligence, I will tell them that, too,” she said.

    In Dr. Sullivan's case, the law in Illinois (where the suit occurred) actually protects the identity of the expert witness. In fact, Illinois law does not require that the case against each physician be precertified before it goes to trial.

    The law itself is unfair, Dr. Sullivan said, and he thought it wrong to name so many physicians in the suit improperly. There was no factual basis for naming any of them, he said.

    “It wasn't fair to me or the other people,” he said. “There are legitimate lawsuits and I would never begrudge anyone the right to sue when the physician has done something wrong.”

    He sued — not for the money but to change the law. He lost at the trial court level, but when he appealed, he did so with the support of the American Medical Association and the American College of Emergency Physicians. The AMA even hired a law firm to help him.

    He became a leader in the CCEMT and joined its board. He is convinced that the system is broken, and he wants it fixed in a way that is fair to all.

    ‘Likeable’ Expert

    “It is, in part, a system problem because it forces experts to be adversarial,” said Dr. Sullivan. “It ends up with each side going out to hire the best expert each can afford to advocate a certain position. Whose expert is better or more qualified? Sometimes, it's a matter of who is the most presentable or likeable witness.”

    CCEMT is dedicated to ensuring that the legal system will not be dependent on random testimony of hired expert witnesses

    In other nations, he said, the court appoints the experts, who work for neither side in a case. “It becomes more of an informational system. The expert provides information to the judge and jury.”

    Dr. Sullivan said he did not know for sure that such a system would work in the United States, but it is a possibility. The group is soliciting other suggestions about how to solve the problem, he said.

    Bernard Ackerman, MD, the director of the Ackerman Academy of Dermatopathology in Manhattan and a founder of the CCEMT, said he has been an expert witness hundreds of times. He is an expert in diagnosing melanoma, and lawyers have sought his opinion over whether treatment met the standard of care.

    “I have read no small amount of depositions over the years,” he said. “The vast majority of my colleagues behave in a proper way.”

    It was the minority, however, who led him to found the Coalition and Center for Ethical Medical Testimony with Dr. Andrew. “In my particular arena of expert testimony, it's [the percentage of unethical experts] more than 10 percent,” said Dr. Ackerman. “It's quite an obscene game.”

    Consistency

    Like Dr. Andrew, Dr. Ackerman maintains his independence when he reviews records in a case. “I don't have the slightest idea who they represent,” he said. As a teacher, he reviews cases with his class, and the students give their diagnoses.

    “We take the exercise very seriously,” he said. “I don't want to use only my standard as the measure. We discuss the case. What was the likely accusation here? What likely happened to the patient? This goes on for 20 minutes to one-half hour.”

    Sometimes, he tells the attorney, “If you represent the defense, I can't help you. If you represent the plaintiff, I can and this is the argument. At that point, the attorney identifies himself or herself as representing the defense or plaintiff.”

    In some instances, Dr. Ackerman said, the process impresses attorneys. Some have dropped cases because of what he says. Other attorneys will ask, “‘If you won't do it, who will?’ I know very well who will, and I give them the names.”

    Consistency is the hallmark of his testimony, he said, although he has changed opinions in various areas of dermatopathology over the years because of new evidence. “I have colleagues who lie outrageously,” said Dr. Ackerman. The worst offenders in his field are those from universities, who dominate the area, he said.

    “All the expert witnesses in these matters come from the universities, and they are full professors. They would never say in a classroom what they are comfortable saying in a courtroom.”

    Doctors' Lies

    The justification that many people lie in court does not hold water, he said. “Let them do it,” he said. “Doctors should not. Physicians who lie in court and depositions lie to their patients, take advantage of their patients, and put their own needs before those of their patients. Lying in court is emblematic of a way of thinking that is not confined at all to medical-legal matters.”

    “I know there is a lot of expert witnessing going on that is less than optimal.”

    Dr. Louise Andrew

    “Sometimes, it's a matter of who is the most presentable or likeable witness.”

    Dr. William Sullivan

    “It's quite an obscene game.”

    Dr. Bernard Ackerman

    In fact, Dr. Ackerman said, about 10 years ago, he wrote in an editorial that “if you lie in court and I find out, I'm going to publish it just as you testified.” “We are on the right track. This erodes the foundation of society. It does irreparable harm to the system. These colleagues wreak havoc on a free and democratic society. Doctors should be incensed.”

    Dishonest medical testimony, whether it is on the side of the plaintiff or the defendant, is wrong, he said. “I have been in court and heard my fellows say they only testify on behalf of physicians. Patients are human beings and have the right to allege negligence. They need competent physicians to testify on their behalf when their cause is just.

    “We are not trying to superimpose a point of view,” he said. “We are trying to say we have to agree that the system is broken. Medical expert witnesses have to be accountable. We have to agree that if they are not, something should be done to make them so.”

    Dr. Ackerman and his colleagues are still investigating ways to fix the system, but he said he is sure they are doing the right thing. “We have energy, and we will have the money. We are a new organization, but we are highly committed and we are going to prevail.”

    ACEP Policy on Expert Witnesses:

    Expert witnesses assess standard of care for emergency physicians in matters of alleged medical malpractice and peer review. Expert witnesses in emergency medicine should meet these criteria:

    • ▪ Actively practice emergency medicine for three years before the date of the incident.
    • ▪ Possess current experience and ongoing knowledge in the area in which he is asked to testify.
    • ▪ Be willing to submit transcripts of depositions and testimony to peer review.
    • ▪ Not accept compensation contingent on the outcome of litigation.
    • ▪ Not provide expert medical testimony that is false, misleading, or without medical foundation.
    • ▪ The expert witness should review the medical facts in a fair and objective manner and not exclude any relevant information to create a view favoring the plaintiff or the defendant.
    • ▪ Understand that misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.

    Approved by the American College of Emergency Physicians Board of Directors, August 2000.

    Source: acep.org, August 2003.

    © 2003 Lippincott Williams & Wilkins, Inc.