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NEUROLOGISTS IN THE COURTROOM
HOW THE PROFESSION REGULATES EXPERT TESTIMONY



Neurologists may see providing testimony in court as a good way to offset their income. Physician experts can make $5,000 to $10,000 a day for their testimony at trial. And considering all the duties that come with a medical practice – evaluating numerous patients, managing care with family members, handling stacks of paperwork – reviewing one medical case and then testifying about it in court might seem like an easy way to earn extra cash.

What you say in court, however, can come back to haunt you. A string of court cases suggest physicians should make sure they are well prepared before serving as an expert or risk being countersued by colleagues claiming improper testimony. In addition, more and more medical societies – including the AAN – have programs designed to review the testimony of their members and to discipline those they find to have acted improperly.

But do professional doctors' groups have a right to submit the testimony of their members to peer review? Two court cases have clashed on this.

A US District Court in Kansas ruling in June sided with medical societies. The case concerned Oklahoma ob-gyn J. Clark Bundren, MD, who sued Kansas ob-gyn Joel E. Parriott, MD, for defamation. Dr. Parriott had lodged a complaint with the American College of Obstetricians and Gynecologists that alleged that Dr. Bundren misrepresented medical facts in his deposition testimony against Dr. Parriott. The judge ruled that the society's grievance process for expert testimony is a “professional review action” under the federal Health Care Quality Improvement Act, and that complaints filed through the program are immune from lawsuits.

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Greater awareness has led to an increase in complaints about physicians providing inexpert testimony in court cases. But federal and state courts have disagreed about the role that medical societies and professional associations can play in disciplining its members for their conduct in court.

The Florida 1st District Court of Appeal, on the other hand, ruled in July that state and federal immunity statutes do not apply to peer review of expert testimony. The case stems from a complaint filed by three physicians, two of whom are neurologists, with the Florida Medical Association for testimony provided by California internist and geriatrician John Fullerton, MD, during a lawsuit in Florida in which they were exonerated. The Florida court said the law does not protect the Florida Medical Association and the physicians from a defamation lawsuit filed by Dr. Fullerton.

REVIEWING COMPLAINTS

H. Richard Beresford, MD, Chair of the AAN Grievance Committee, said allowing societies to review expert testimony helps to legitimate the process. While the Grievance Committee handles any type of complaint filed against an AAN member, the process was originally set up in response to an alarming number of complaints received by the Executive Board about neurologists testifying inaccurately in court, he said. “It's viewed as a service to the membership because there is a concern that some physicians are not behaving ethically in their courtroom appearances.”

Complaints against AAN members, usually in the form of a letter, first go through the legal office and are then sent to the Grievance Committee, he said. The Committee reviews the complaint and asks for documentation, such as a written transcript from the trial. If the documentation suggests a credible basis for disciplinary action, the Committee prepares a written complaint that is sent to the Vice President, who in turn sets up an ad-hoc Fair Hearing Panel comprising three AAN members who are specialists in the field in which the complaint is concerned. The member has 60 days to prepare a response. The VP presides over the hearing, during which both sides of the complaint can present their case.

If the panel finds that the member violated AAN guidelines for expert testimony, it can: do nothing; censure the member through a private letter or an announcement in the AAN newsletter; suspend the member for a period of time; or expel the person from the Academy.

The panel's decision, however, can be appealed to the Executive Board. If the Board decides to uphold the decision of the hearing panel, the process is considered final, he said.

Since 1992, when the Grievance Committee was established, one member has been disciplined. That person was censured through an announcement in the AAN newsletter, AANews. However, the Academy has received an increasing number of complaints in the past several years, Murray Sagsveen, AAN General Counsel, said.

From 2003 to 2005 the AAN received 14 complaints concerning expert testimony, according to Karen Kasmirski, Legal Administrative Assistant at the AAN. This past year, they received 10. Several complaints have been dismissed, and others are being reviewed by the Grievance Committee or have been submitted to Fair Hearing Panels.

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Russell Pelton said the American Association of Neurological Surgeons Professional Conduct Committee has since 1983 received 50 to 60 complaints regarding expert testimony, and has expelled five members, suspended 22, and censured nine.

Sagsveen said the spike in complaints can probably be attributed to more members becoming aware that such a grievance process exists. Most of the complaints, he said, alledge that neurologists have testified outside their area of expertise, provided testimony that is not supported by peer-reviewed or evidence-based research, or were not appropriately familiar with the medical records.

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Murray Sagsveen: “Sometimes expert witnesses go into a deposition or a trial and havent thoroughly prepared for it. They may have read the medical records a month ago or they may have examined the patient a year ago.”

“Sometimes expert witnesses go into a deposition or a trial and haven't thoroughly prepared for it,” he said. “They may have read the medical records a month ago or they may have examined the patient a year ago.” An experienced attorney, he said, often knows as much or more about the medical records than the physician does and will ask the cross-examination questions skillfully.

Attorneys will also often use the same expert for several different cases, leading to physicians who testify outside their area of expertise, Sagsveen said.

Russell M. Pelton, General Counsel for the American Association of Neurological Surgeons (AANS), has been following this issue from the very beginning. He helped establish the oldest of these grievance programs at the AANS in 1983. Since then, its Professional Conduct Committee has received 50 to 60 complaints regarding expert testimony, and has expelled five members, suspended 22, and censured nine, Pelton said.

The program has faced several legal challenges, most notably in the 2001 case Donald C. Austin, MD v. American Association of Neurology Surgeons, in which 7th US Circuit Court of Appeals Judge Richard Posner declared that judges need the help of professional associations in screening experts, and that physician testimony is considered a part of the practice of medicine.

CONSEQUENCES

Disciplinary actions taken by a medical society are more than just a slap in the hand, assures Sagsveen. If the person is expelled, the AAN is required to notify the member's state licensing board as well as the National Practitioner Data Bank, which then notes it in a permanent record of the physician.

And although the AAN grievance process is confidential, any disciplinary actions that result from it (except censures in the form of a private letter) may be reported to Academy members, such as through publication in the AAN newsletter. Public discipline could also compromise a member's chances of serving as an expert witness in the future.

“During testimony in cross examination physicians will usually be asked about their expertise, where they went to medical school, their membership in a professional medical association, and whether they have ever been disciplined by that association,” he said. “If the answer is ‘yes, I have been disciplined,’ the credibility of these expert witnesses just crumbles.”

SCRUTINIZING EXPERTS

So how can neurologists avoid problems when providing expert testimony? Sagsveen said experts should have nothing to worry about as long as they do their homework beforehand. This includes reading the AAN guidelines on expert testimony, which would advise them to catch up on the appropriate medical literature, carefully review the medical record, and testify only within one's area of expertise. “It's not like walking into a room and casually talking about it,” he said.

It's important that physicians review all the medical records relevant to the case instead of basing their testimony on a summary of the case provided by the lawyers, Pelton said. “That report would be skewed the way the lawyer wants you to testify and might leave out critical facts.”

If the lawyer refuses to provide these documents, neurologists should refuse to testify, Sagsveen said.

Lance D. Schreiner, a malpractice defense attorney with the North Dakota-based firm Zuger Kirmis & Smith, said complaints about inaccurate testimony usually involve physicians who testify so often that it becomes like a second job. Commonly, they testify solely for either the defense or the plaintiff and end up doing it strictly for the money, he said. “The medical profession is one of its own worst enemies when it comes to medical malpractice litigation and the problems that are inherent in it.”

“[The physician expert] was originally envisioned as a practicing physician who is willing to take time from practice to provide objective expert advice to the jury,” he said. “Instead, we end up with people who are retired and have not practiced for a long time and perhaps have a consulting business…. I see experts who have been involved in hundreds of cases. Quite frankly, they are very smooth, very glib, and capable of communicating with the jury. It's their business.”

Pelton said sometimes physicians will misstate the standard of care. For example, in one case involving a child who had a traumatic brain injury, a neurosurgeon testified that had the child been given the corticosteroid dexamethasone (Decadron) immediately, he would have virtually recovered. The neurosurgeon claimed that use of the drug is standard within the profession, which contradicts an AANS report saying that it is ineffective for traumatic brain injury. He later admitted that he had never read the report, and was suspended by the AANS for his testimony.

“There is nothing wrong with having different opinions, but the AANS rules say that if different opinions exist, you have to acknowledge them,” Pelton said.

Schreiner said he's found society guidelines to be an effective way to examine expert witnesses. “I ask experts each time I take their depositions if they are willing to adhere to those guidelines. Most of them have no problem with that…. That's what I see as an attempt to make them answer not to the court system but to their own peers.”

INTIMIDATION OR VALID REVIEW?

But Bruce Stern, who handles traumatic brain injury cases at the plaintiffs' firm Stark & Stark in Princeton, NJ, said grievance programs often discourage physicians from testifying against their peers. He said that within the last two or three years it's become more difficult to find experts who are willing to serve in plaintiff cases. “The only explanation can be that they are being intimidated,” he said.

In theory, he said, the programs are a good idea. The problem is that punishments are not being leveled fairly. “The difficulty we see is that the associations or societies use these rules to intimidate doctors who testify on behalf of injured patients or against doctors who have committed medical negligence. Rarely do you see the societies discipline defense expert neurologists or neurosurgeons.” He said that in his experience, societies never address physicians who testify on behalf of insurance companies, who 90 percent of the time claim that there is nothing wrong with the patient they have evaluated.

Furthermore, the problem of inaccurate testimony has been exaggerated, he said. The legal system is set up so that an expert citing bad medicine usually gets exposed, according to Stern. “I hear some of these doctors coming in and saying there can't be a brain injury because the person didn't lose consciousness. That's just bad medicine. I know it and they know it. So when I confront them with the literature they are all over. That's how the system works.”

Dr. Beresford said that rather than intimidate neurologists, the AAN program is more likely to make them think more carefully about the types of opinions they offer. “In my view, you shouldn't say anything in court that you wouldn't say before a group of your neurologist peers.”

And considering that the AAN has only disciplined one member so far, the program may not be as imposing as it seems. Sagsveen said the lack of disciplinary actions could be because the fair hearing panel often finds that an expert witness “has a fairly logical reason” for testifying the way he or she did. “It goes back to the concept that medicine is both an art and a science. The fair hearing panel concludes, ‘that's a fairly logical explanation, we wouldn't do it that way but we see why he or she did it that way.’” Also, he said, members may file a complaint because they are angry that another doctor testified against them. “Not all complaints are valid complaints,” he said.

A CIVIC DUTY

It has to be up to the medical profession to discipline rouge experts, according to Pelton. The courts, he said, do not have the capacity to do this thoroughly. And while he feels that state licensing boards should discipline members who testify unethically, and many are starting to do this, the fact remains that very few are. He said one reason could be that a lot of state boards are uncertain as to whether giving expert medical testimony is part of the practice of medicine. “So what it really comes down to is that the medical profession itself has an obligation to police its ranks,” he said. “The medical societies are best equipped to do that.”

Schreiner said he encourages physicians to become involved in the process as a service to society as well as to the medical profession. “I think it will ultimately help the medical profession if physicians who know what the standard of care is and practice it everyday get involved [as experts]. Those are the people we need to help us understand the case and help the jury understand. We don't need someone who has been in court more than most trial lawyers. They don't serve a purpose other than to put a negative image on both the legal and medical profession.”

“As long as you stay within your field and give objective, fair testimony, the only thing you have to fear is the context of the courtroom,” he said.