Civil Justice Memo
No. 31 April 1997
Abusive Expert Testimony: Toward Peer Review
by L. William Luria, M.D., F.A.C.S., LHRM and Dennis S. Agliano, M.D., F.A.C.S.
Some years ago one of us had the occasion to attend the trial of a medical malpractice suit filed in New York City. Like other suits, this one attacked the professional integrity of a practicing physician, impugning a 35-year medical career. To back his charges, the plaintiff’s attorney—again following the standard format of such suits—called an expert medical witness to testify under oath that in his opinion this physician had practiced medicine below the prevailing standard of care.
On the surface, at least, this expert witness may have seemed an impressive figure. He testified that he was a member of a department of head and neck surgery at a hospital in Manhattan and a professor at a medical school. He proceeded to offer opinions about the way in which the surgical procedure in question should have been performed, and justified his views by displaying anatomical diagrams which appeared to come from standard textbooks. Under questioning, however, it emerged that he had never actually performed the procedure at issue. In fact he was not a surgeon, or a medical school professor. He also admitted that part of his testimony involved the use of altered anatomic diagrams. All of these facts emerged on the cross-examination of this witness during the trial.
Most physicians are now convinced that there is something terribly wrong with a legal system where this sort of thing can happen, and when they exchange stories of this sort they think that a rational system would be trying to correct this behavior. And yet those in charge of running our legal system continue to proceed in cases like this as though nothing were amiss. Though the expert in question was in this case thoroughly discredited during cross-examination neither he nor the attorney who hired him were seriously at risk of any professional discipline. This case might have been lost if not for a casual conversation between the defendant doctor’s wife and a friend who recognized the expert witness as the same one who had testified against her husband and who they had discovered after their trial was a fraud. Expert witnesses virtually never come under perjury or contempt charges. Even if a judge rules their testimony out of bounds in a given case, the ruling normally affects only that one case.
The doctor who abused his testimonial privileges so egregiously in that New York case may not have had to worry overmuch about the oath he took as a witness, but he is sworn to another kind of oath which may have more binding force. Like all doctors, he has taken a vow to uphold the standards of his profession. Were he to have misrepresented his credentials or specialty in a similar way in the course of offering medical advice to patients in the outside world, or sought profit by proffering egregiously uninformed opinions at odds with accepted medical understanding, he would assuredly be open, after due complaint, to sanctions from some local disciplinary panel practicing peer review. Both his ethical conduct and honesty and his grasp of medical science might come under scrutiny, and he could not evade that scrutiny by saying that, after all, anyone is entitled to offer any medical opinion he feels like offering.
There is no reason why the rules of ethics and competence that apply in our operating rooms and examination rooms should not also apply in our courtrooms. Ideally, the impetus for reform should come at least in part from within the legal system. Unfortunately, but perhaps not surprisingly given the obvious self-interest at stake, such efforts have been slow to arrive. But a different remedy is also available, and its source is one of the time-honored institutions of the medical profession, peer review. We believe that local medical professions should protect standards of care in their jurisdictions by investigating and, where appropriate, disciplining members of the profession who abuse the privilege of expert testimony.
What We Are Doing
In Hillsborough County, Florida, a large urban county that includes Tampa, peer review of testimonial abuse is now a reality. Last year the Hillsborough County Medical Association established a peer review expert witness committee under its Board of Censors, which is the county’s disciplinary body. The charter of the newly formed committee made up of 12 doctors is to investigate all complaints filed with the Board of Censors, related to any expert testimony given under oath. It is the premise of the Hillsborough County Medical Association that it alone is the ultimate bastion in determining the true standard of care in Hillsborough County, Florida, whether in medical practice or expert testimony. We will not allow these standards to be bastardized in the office, hospital or courtroom.
The institution of peer review as it has developed over the years is subject to considerable due process safeguards for the doctor charged with misbehavior, and peer review of testimonial abuse is no exception. The process begins when a doctor or patient files a letter of complaint with the county society. The first step is to request the pertinent records, which are then sanitized by the expert witness committee chairman and the medical society’s staff. They remove all of the physicians’ names, facilities, and any other references in the documents that might identify any of the parties involved. Then the full committee performs an initial screening of the documents which may lead to either a immediate dismissal of the complaint or a request that the chairman convene a three-physician panel to do an in-depth assessment of the records submitted.
The members of the three-physician panel are selected from a list of volunteer physicians from around the county and chosen based on their specialties. The list of eligible physicians includes a large number of reviewing physicians who are not on the Expert Witness Committee and who meet certain minimal criteria, i.e., they must currently spend at least 50 percent of their time in the active clinical practice of medicine, they must be board certified in their specialty, and must have practiced at least five years within the State of Florida. In addition, the three physicians chosen for the panel must disavow any prior knowledge of the case and are advised that during the review of the records if they believe they in fact have knowledge of the case they must recuse themselves from further participation in the review so they can be replaced.
Each of the three physicians on the review panel then conducts an independent review of the case records and individually reports his or her findings in writing to the expert witness committee. The full committee then meets again to decide whether to drop the complaint or to make a referral to the Board of Censors who then decide at that point whether the charges have to be taken more formally. The physician-witness then is invited to make a full issue-by-issue response in an informal setting. After hearing the evidence on both sides, the Board of Censors rules whether it finds the complaint to have been proved valid and then can ask the President of the HCMA to form and convene a separate judicial committee made up of six past presidents of the HCMA for a formal hearing. As in the case of other physician misconduct, the scope of discipline can vary from simple reprimand through suspension to, in the most severe cases, expulsion.
The point of peer review is not, of course, to “second-guess” any and all medical testimony at the behest of offended opponents. Our association well recognizes that medicine encompasses a range of appropriate differences of opinion, which may sometimes be heated, and that majority and minority views on many issues may differ without any implication that the minority view is less than legitimate. On the other hand, it is universally recognized, as in the case of physicians’ direct practice of medicine, that practitioners of all viewpoints can properly be held to certain standards. They should base their pronouncements on reasonably current knowledge after conducting a thorough and impartial review of the facts. They must not misrepresent themselves as having qualifications which they do not have, and must proceed with particular caution, if at all, in areas where they lack relevant experience. In addition, the process of giving testimony itself imposes distinctive obligations. Doctors who testify as to questions of malpractice, for example, are expected to grasp the distinction between malpractice and maloccurrence, and are expected to assess, if facts permit, the relationship of the allegedly substandard practice to the outcome.
It should be emphasized that the investigatory scope of the committee is not limited to expert testimony given at trials only. Much activity by expert witnesses takes place at earlier stages of litigation, as in the giving of affidavits and deposition testimony. Abuses at these earlier stages, just like those at trial, should be taken very seriously. In pre-trial proceedings, for example, as later at trial, expert pronouncements are liable to enter the public record, with potentially serious consequences when the statements are false, misleading or medically incorrect. The consequences can include such miscarriages of justice as unjustified settlements and prolongation of litigation that should have been dropped. They can also include damage to the reputation and privacy of parties to the litigation and of third parties.
To work as intended, the plan requires a supply of qualified volunteer doctors who are unfamiliar with the sanitized cases. This has not been a problem in Hillsborough, a large urban county which has several thousand doctors, especially since most practicing MDs who are sued do not call attention to the cases among their colleagues. Smaller counties would have more serious problems finding reviewers who meet the requirement, and even a large county like ours might face such a problem if a publicized case were to lead to a complaint before the panel, a situation that has not yet come up. We think an appropriate solution would be to share reviewers across county lines. With other counties now looking to establish their own peer review we have volunteered our own panel for use by other counties and several of those counties have likewise expressed interest in furnishing reviewers for our use should cases come up where local review is impossible. Ultimately, we anticipate statewide and national expert witness review committees.
Medical witnesses against whom complaints are found valid will not always be licensed to practice locally. In the case of doctors licensed elsewhere in Florida, our society can send letters in support of the complainant to the Florida Board of Medicine; in the case of out-of-state witnesses, complaints will be referred to their state boards.
Because feelings run high among many physicians upset at what they perceive as improper expert testimony, observers may wonder whether panels of physicians, even after records have been sanitized, can bring adequate objectivity to the task. One might respond that the medical profession is expected to police itself for all varieties of misconduct that bring the profession into disrepute. The association and committee recognize that one object of this program is to ensure that physicians are not discouraged from testifying when appropriate. It is also important to note that the bylaws of the association obligate the Expert Witness Committee to deal equally and impartially with expert witnesses whether they have represented the defense or the plaintiff. Indeed, the committee is required by statute of the State of Florida to refer the complainant to the Board of Medicine if it feels that the expert witness was correct and in a malpractice case that the plaintiff's defendant indeed committed an act of malpractice.
As we see it, the good and ethical physicians of this country should no longer have their reputations sullied by a legal system that permits attorneys to hire inappropriate physicians to give inappropriate testimony.