Medical Malpractice Case of the Month
April 1999

In a Recent case in Florida, a physician was found guilty of medical malpractice in the death of a premature infant. The jury's finding of guilt, however, was based in part on testimony of an "expert witness" who was neither a neonatologist, a pediatrician or an obstetrician. In a New York case, the plaintiff brought an expert who claimed to be a member of the department of surgery at a major Manhattan hospital, as well as a professor at a medical school. He gave his opinion on how the surgical procedure in question should have been performed, bolstering his testimony with what appeared to be diagrams from standard medical textbooks. On cross-examination, however, it was discovered that the so-called expert had never performed the procedure in question -- in fact, he was not a surgeon, nor was he a faculty member at a medical school -- and some of the diagrams he used had been altered.

Admittedly, instances as egregious as these are rare. Even so, many physicians have become convinced that there is something wrong with a legal system in which such an occurrence could happen at all. Expert witnesses virtually never come under perjury or contempt charges, particularly since they claim to be offering merely their opinions, rather than established, un controvertible facts. Even if a judge rules an expert's testimony inadmissible in a given case, the ruling will usually affect that case only, leaving the expert free to testify again in other trials.

All physicians, upon beginning their practice of medicine, take vows to uphold the standards of their profession. If a physician were to treat a patient in a manner not consistent with the standard of care, and a complaint were filed, the physician would be subject to sanctions from a disciplinary panel practicing peer review. Under scrutiny from such a panel, the physician would be unable to state that he or she is entitled to offer any opinion he or she desires to bring; such a statement would certainly result in disciplinary action. Yet a physician making the same statement in a courtroom may escape any adverse action whatsoever. Thus, many medical professionals feel that the time for peer review of medical expert testimony has arrived.

Florida's Expert Witness Committee

The Expert Witness Committee (EWC) was developed at the Hillsborough County Medical Association in Tampa, Fla., as a means to peer-review allegedly fraudulent and deceitful testimony by some physicians who are hired as expert witnesses. It was felt that since the civil justice system was not addressing the perjury allegedly committed by some of these paid experts, the medical community needed to peer-review those physicians who were making a sham of the standards of care. From the start, the EWC recognized that different physicians can have differing opinions. What it could not accept was obviously false and deceitful testimony that could be harmful to good physicians. To this end, it established a set of guidelines for physicians serving as expert witnesses in the state (see sidebar on Page 3).

The EWC, composed of active, board-certified physicians, is charged with reviewing all complaints regarding medical experts, whether on the plaintiff's side or the defendant's. It investigates physicians testimonial and deposition activities to uncover possible fraud or deceit, and reports its findings and recommendations to the Florida Medical Association's Council of Judicial and Ethical Affairs, whose main function is to assure that physicians provide quality services. The peer review procedure is triggered when a plaintiff or defendant physician or patient asks for an opinion or files a complaint about the testimony of an expert physician. The medical association receives all applicable documents and, to assure neutrality, removes identifying characteristics such as patients', physicians' and hospitals' names. The 12-member EWC then reviews these materials and, by a simple majority vote, determines whether there is evidence of deceit or fraud in the expert's statements regarding the applicable standard of care that may affect the quality of health care.

If there is no evidence of deceit, the complaint is dismissed. If evidence of deceit, the complaint is dismissed. If evidence of possible fraud or deceit is found, the EWC formulates specific questions to be posed to a panel of neutral physicians in the same specialty as the expert in question. Each member of this panel reviews the materials independently, answering the EWC's questions, and presents his or her responses to the committee. If there is a consensus among the panel members, the EWC will make a recommendation to the CEJA for action and/or forward the results to the state board of medicine. If no consensus is reached, the complaint is dismissed.

The EWC encourages testimony by physicians to protect patients. It does not impede First Amendment rights of freedom of speech; however, it does not accept lies on the witness stand, in depositions or in affidavits. The EWC demands accountability of physicians, whether in the examination room, operating room or courtroom. It does not block physicians from crossing state lines to testify -- however, it does recommend a per-case temporary license to assure accountability by peer review.

There is a basic tenet regarding a medical expert who testifies falsely: Either that physician has committed perjury and should face discipline through the legal system, or, if the testimony is not considered perjury, then the physician must be practicing the way he or she testified, and would have the potential to harm his or her own patients. In this event, the Physician must be reviewed by his or her peers in the medical community.

The cost of medical malpractice is claimed to be more than $12 billion a year. Since about two-thirds of medical malpractice cases are dismissed or considered nuisance cases (see statistical supplement in this issue), a significant savings should also be effected by a system such as the EWC, which weeds out experts who sign false affidavits or testify deceitfully. This would benefit everyone -- patients, physicians and trial attorneys -- by lowering the costs of health care, decreasing medical malpractice insurance premiums and reducing the amount of costly litigation. When run properly, an EWC would be a system that is embraced by both sides in a case, since the common denominator is truthful testimony -- there is no place for "junk science" in the courtrooms.

Will It Be Harder To Find Expert Witnesses?

Some trial attorneys are concerned that having an EWC in place would make it more difficult to get "good" medical experts, since they would be subject to peer review. This should not be the case unless the definition of "good" is false testimony. Why should a medical expert's testimony not be held as accountable as that of the practicing physician against whom the expert is testifying? Isn't the harm of false testimony and the pain and suffering to the defendant physician not as great as the patient he or she is alleged to have harmed -- with such information being disseminated to the public through the Internet, National Practitioner Data Bank and other physician profiles?

It has been said that by establishing EWCs, organized medicine is trying to control or guide physicians' testimony. This is, of course, untrue: A physician may testify as he or she sees fit, but must be sure to stay within the bounds of the prevailing reasonable standards of care to which all physicians in the specialty adhere and for violations of which they could be sued. Some attorneys have stated that it should be left to the judge and jury to weed out false testimony. In medical malpractice cases, however, this may be difficult and more rare than in other personal injury cases, as frequently, neither the judge nor the jury possesses sufficient medical knowledge to distinguish the validity of contradictory testimony given by opposing medical experts.

Perhaps the best answer is to use a court-appointed expert who is paid by neither side. What is needed is truthfulness in testimony that does not make a sham of the standards of care.

Expert Witness Committee Guidelines FLORIDA PHYSICIANS who serve as expert witnesses must conform to the following guidelines or face review and possible disciplinary action from the state board of medicine: The physician should have current experience and ongoing knowledge in the area of clinical medicine about which he or she is testifying. The physician's review of medical facts should be thorough, fair and impartial, and should not exclude any relevant information in order to create a view that favors either the plaintiff or the defendant. The physician's testimony should reflect an evaluation of performance in light of generally accepted standards, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls below the standards. The physician should clearly distinguish between medical malpractice and medical maloccurrence. The practice of medicine is a mixture of based, to a great extent, on concepts of probability rather than absolute certainty. The physician should make every effort to assess the relationship of the alleged substandard practice to the outcome, as deviation from a standard of care is not always causally related to a bad outcome. The physician should be willing to subject transcripts of deposition and courtroom testimony to peer review. Source: Hillsborough County (Fla.) Medical Associaton Inc. Reprinted with Permission.

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