The AAN Grievance Committee has been busy this year. A subcommittee of the Committee on Ethics, Law, and Humanities, the three-member panel received as many complaints about alleged improper expert witness testimony by neurologists in the last year as it did in the previous three years combined.
That spike in grievances filed by neurologists against other neurologists seems to mirror a trend in other medical specialties and throughout medicine in general. In June, John Fullerton, MD, a San Francisco internist and geriatrician, made headlines around the country when three colleagues – two of whom were neurologists – lodged a complaint with the Florida medical board regarding expert witness testimony he'd provided against them during a lawsuit in Tampa. Dr. Fullerton promptly turned around and sued the complaining physicians for libel. The case is ongoing.
What's behind this trend? Is it vengeful colleagues trying to silence or intimidate plaintiff experts, as Dr. Fullerton suggested in comments to the New York Times? Or is it a rise in off-the-wall testimony that has prompted specialists to try to rein in members of their own profession?
REASONS FOR COMPLAINTS
A fair number of such complaints are indeed founded, said Grievance Committee Chair H. Richard Beresford, MD, Professor of Neurology at the University of Rochester School of Medicine and Adjunct Professor of Law at Cornell University in Ithaca, NY.
“In some of these cases, there seems to be a disregard for evidence-based medicine and a willingness to testify on seat-of-the-pants clinical considerations. You'll find people who are willing to say, in a legal proceeding, something they wouldn't dare to say before professional peers – or that they'd be severely criticized for saying, if they did so,” he observed. “You have more and more people expressing personal opinions: ‘It is so because I think it's so,’ without any scientific foundation for that opinion.”
“Sometimes there can be two different views on a particular disease or process, and both are respected views and you can't say that one or the other is the ‘right’ one,” said Michael A. Williams, MD, Chair of the AAN Committee on Ethics, Law, and Humanities and a member of the Grievance Committee. ''But in other cases, certain views are personal hypotheses not supported by the medical literature.
“That is the common thread in the cases we've reviewed in the past year and have recommended a hearing on: a lack of scientific foundation,” Dr. Williams said. “If expert witness testimony is brought forth that has no scientific basis, and that testimony is part of the reason for settling a judgment against a physician, then we have unscientific data being used to penalize physicians. That is detrimental to neurology, to patients, and a lot of people argue that it's one of many things that propel this malpractice crisis that we are in.”
ROLES OF JUDGES AND JURIES
Judges and juries often aren't in a position to challenge such testimony. “Rarely do courts insist on having expert witnesses detail what his or her conclusions are based on. There is no peer review of expert witness testimony to ensure its merit or validity. The analysis of expert witness' medical testimony usually centers around the expert witness' credentials or on the certainty with which the opinion is expressed, rather than whether the opinion is based on sound scientific principles,” wrote the authors of a position paper on expert witness testimony released by the Society of University Surgeons at its 2004 Annual Meeting.
Dr. Beresford agrees. “Judges aren't that well equipped to decide whether an asserted neurology expert knows what he's talking about. How is a judge to evaluate someone's expertise, without seeking consultation from professors in the local medical school or something like that?” he asked. “The credentials an expert witness offers are usually pretty good; in fact, some of the people with the best credentials give highly dubious testimony that they wouldn't dare to present before their peers.”
Another reason for the increase in complaints about expert testimony may be a corresponding increase in the number of “medical experts,” suggested the Grievance Committee's third member, William L. Brannon, Jr., MD, Director of the Division of Neurology at the University of South Carolina School of Medicine in Columbia.
“There seem to be more ‘experts’ out there now. It used to be that the experts primarily came from academic medicine, but now we're seeing experts from all areas of practice, private practice particularly,” he said. “I suspect that as reimbursement is declining and the financial situation for physicians becomes more difficult, people are looking for more sources of income.”
Dr. Beresford worries that the financial temptations of expert witness testimony could tarnish the reputation of the profession, if the quality of that testimony doesn't live up to clear and established standards. “The public could become increasingly cynical, when they hear about doctors testifying for hire,” he said. “Neurologists have to decide what they think about this.”
Several medical specialty societies, including the American Society of Anesthesiologists and the American College of Radiology, have established specific review procedures aimed at investigating complaints about members' expert witness testimony in civil and criminal proceedings.
The oldest of these was first developed nearly 20 years ago by the American Academy of Neurological Surgeons (AANS), and has withstood several legal challenges from neurosurgeons who have been found by its Professional Conduct Committee to have provided unsound or inappropriate expert witness testimony.
“Judges need the help of professional associations in screening experts,” declared 7th US Circuit Court of Appeals Chief Judge Richard Posner in finding for the AANS in one such case, Donald C. Austin, MD, v. American Association of Neurological Surgeons.
While the AAN does not have a specific, separate body for reviewing complaints about expert witness testimony, in practice, these are virtually the only substantive cases brought to the Grievance Committee, said AAN Federal Affairs Manager Mike Amery.
Dr. Williams compares the committee's role to that of a grand jury. After receiving a written complaint against an expert witness, AAN staff will request more information for the committee to review – usually including depositions from the trial in question. “We meet to review these complaints, and the accompanying depositions and other evidence, two to three times a year. The last time we did it, the stacked depositions, printed on both sides, were somewhere between four and six inches high,” said Dr. Williams.
“We then review them against the AAN guidelines for expert witness testimony. If those standards have been violated, then we will rule that the next step should occur: a fair hearing process.” At that point, just like a grand jury after an indictment, the Grievance Committee is no longer involved in the process. The case is forwarded to the Academy's Vice President, who presides over the hearing and appoints an ad hoc panel of three members to review the complaint and the member's response, which he or she has 60 days to prepare.
“It's a very carefully prescribed set of processes including consequences, timelines, and so on,” explained Dr. Williams. “The person who's had a complaint filed against them can meet with the panel by phone or in person, and can have an attorney present.”
The ad hoc panel can take several actions: Find no reason for action against the member; censure the member, sending a letter advising that the fair hearing process has found misconduct in expert witness testimony, and that such misconduct should be changed; suspend the member from AAN membership for a defined period of time; or terminate membership, with or without the option to reapply.
Although the hearing process is confidential, its outcome is public. “If action is taken, that by law has to be reported to the national practitioner database and state licensing boards,” Dr. Williams said. “We also publish these actions to AAN members, providing nothing more than the respondent's name, the misconduct committed, and the sanction taken.”
Not every complaint goes this far. Dr. Williams estimates that half or fewer of the expert witness complaints brought to the Grievance Committee are reviewed for the hearing process. But the increase in such complaints has committee members talking about other ways in which it, and the AAN, might respond to the issue.
RETHINKING CURRENT GUIDELINES
“During our last conference call, the Committee on Ethics, Law, and Humanities agreed that we should review and update the AAN qualifications for the physician expert witness, which were issued in 1989,” Dr. Williams said. “It's a process that we hope to have done by January, so that the new draft can go to the Board at the next Annual Meeting.” He added that the Committee would be open to hearing suggestions from AAN members as they draft the updated guidelines.
Dr. Beresford also thinks that the AAN might be able to offer its own “expert testimony” in helping judges evaluate the quality of witnesses brought to their courtroom. “The AAN could let the judicial system know that it is willing to take on this role; judges, of course, don't have to avail themselves of such a resource, but some would,” he said. “I think some judges are, in fact, troubled by the sort of testimony that comes forth in their courtroom.”
“I think the future holds a lot more discussion about the role of the specialist in testifying and what really constitutes expert neurological testimony,” said Dr. Brannon. “The Academy has a series of one-day courses at the Annual Meeting, and this might be a good forum for more education on the subject – perhaps in the format of case-based discussion of particular litigation, for example.”
The goal, said Dr. Williams, is not intimidation of the neurologist who acts as an expert witness, but accountability. “As neurologists, I think we have an obligation to provide quality expert witness testimony. But at the same time, we have a duty to hold physicians accountable for that testimony. The trick is to do that in such a way that it doesn't inhibit neurologists from providing testimony when it's needed,” he said.
“Expert witness testimony needs to be based on the same professionalism and competencies that practicing neurology requires,” he continued. “Practicing physicians are reviewed and held accountable for competency in patient care, and we think the same must be true of expert witness testimony.”
GUIDELINES FOR THE PHYSICIAN EXPERT WITNESS
Highlighted below are some of the guidelines – adopted by the AAN and the Council of Medical Specialty Societies in 1989 – for physician expert witnesses:
- The physician expert witness should be familiar with the clinical practice of the specialty or the subject matter of the case at the time of the occurrence, and should be actively involved in the clinical practice of the specialty or the subject matter of the case for three of the previous five years at the time of the testimony.
- The physician expert witness should affirm that not more than 20 percent of his or her professional activities involve serving as an expert witness.
- Physician expert witnesses are expected to be impartial and should not adopt a position as an advocate or partisan in the legal proceedings.
- The physician expert witness should review the medical information in the case and testify to its content fairly and impartially.
- The physician expert witness should review the standards of practice prevailing at the time of occurrence.
- The physician expert witness should be prepared to state the basis of the testimony presented, and whether it is based on personal experience, specific clinical references, or generally accepted opinion in the specialty field.
- Compensation of the physician expert witness should be reasonable and commensurate with the time and effort given to preparing for deposition and court appearance. It is unethical for a physician expert witness to link compensation to the outcome of the case.
- The physician expert witness should be aware that transcripts of deposition and courtroom testimony are public records, subject to independent peer review.
For the complete guidelines and qualifications, see: www.aan.com/about/ethics/EXPWIT.PDF