NEW ORLEANS – Because of problems inherent in the "expert medical testimony" system for medical liability cases, some form of extrajudicial oversight is probably needed, according to Dr. Steve Waxman.
Dr. Waxman, a urologist and a lawyer who is an expert in medicolegal issues, spoke at the annual conference of the American College of Legal Medicine.
Medical experts play a crucial role in determining causation, whether a physician has met the standard of care, and whether a case should move forward. While they used to be given great deference by the court and enjoyed near-immunity, problems with expert testimony are now being acknowledged, Dr. Waxman said.
These include, in particular, the varying levels of expertise and the questionable impartiality of some medical experts and the fact that scientific support for testimony is often lacking. "Their opinions on causation are not always supported by facts," he observed. And while expert witnesses should see themselves as "educators," they often become "advocates," depending upon who is paying their fee, he said, noting they could be swayed by financial gain.
"There is a big difference in level 1 evidence and expert opinion, but to a jury those distinguishing characteristics are not so clear, especially when presented by a smooth-talking expert witness," he continued.
Medical experts should determine the standard of care based on several factors: scientific basis, method and testability; peer-reviewed literature; clinical practice guidelines; and majority or respected minority opinion. The standard of care upon which a physician defendant is judged "should not just be personal opinion or experience," he emphasized.
Such concerns raise the question of whether "extrajudicial oversight" is necessary. "If a judge, jury, or attorney cannot recognize and therefore challenge false or misleading testimony, can it or should it be challenged outside of the courtroom?" Dr. Waxman asked.
A Need for Extrajudicial Review of Experts?
There are Federal Rules of Evidence that give trial judges oversight of expert witness testimony, although the court is not inclined to impose punitive measures against experts who testify falsely, according to Dr. Waxman. "The view of the medical community is that the judicial oversight of medical expert testimony is incomplete," he said.
Extrajudicial oversight, therefore, has been advocated by a number of entities, including medical specialty organizations, state medical boards, and national and state medical associations. A number have instituted some means of peer review, evaluating medical experts with regard to ethics and bylaws violations, unprofessional behavior, and the "practice of medicine."
Some of the medical specialty organizations providing extrajudicial oversight include the American Association of Neurological Surgeons (Professional Conduct Committee and Procedural Guidelines), Society of Thoracic Surgeons (Expert Registry), American Academy of Emergency Medicine (Remarkable Testimony), and the American Urological Association (Judicial and Ethics Committee). The Society of Hospital Medicine does not have a policy statement on the issue.
The American Urological Association, of which Dr. Waxman is a member, lays out qualifications that must be met by medical. Members pay their dues and sign an affirmation statement agreeing to the guidelines. Members who violate this agreement can be disciplined.
But such extrajudicial oversight is not welcomed by the plaintiff bar, he said. The American Association for Justice maintains that cross-examination should uncover the truth; that peer-review programs may be "facially neutral," but their real purpose is suspect; that the threat of extrajudicial review will reduce the pool of available medical experts for plaintiffs; and that medical associations have a conflict of interest in participating (they want to protect their members).
Emerging Alternatives
Some specialty societies are developing their own expert registries, which are aimed at improving the availability of qualified medical expert witnesses for the plaintiff, to raise the bar for testimony, and to weed out frivolous suits and encourage settlement of meritorious suits. "The defense bar likes this idea, but the plaintiff bar is not very interested," Dr. Waxman said. "They have a stable of experts whose responses are predictable. If they use the registry, they may not like the answers they get. This is not a case of ‘if you build it, they will come,’ in terms of the plaintiff bar."
Physician panels are another emerging alternative and are in place in Indiana and Louisiana. These panels review all cases to determine merit, but plaintiff attorneys can proceed in spite of the outcome.
Dr. Waxman concluded that "the current system is working, most of the time," and that problematic medical experts are being weeded out of the system, though there is room for improvement. Peer oversight is "probably appropriate and necessary," he maintained, "because it usually takes a physician to spot a physician giving false or misleading testimony."