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Being a Medical Expert: Viable Gig or Ethical Minefield?

Lessons Learned from Litigation

Louise B. Andrew, MD, JD

Disclosures

September 08, 2021

Fairly early on in my expert witness phase, I was asked to serve as an expert witness for a medical board that was pursuing an expert whose testimony was questionable. The "expert" had allowed his license in the state to lapse but was still giving testimony both there and in other states.

He basically testified that, because the outcome of a postoperative patient was catastrophic, he did not believe the medical record or the testimony of fact witnesses; and further, that he had a theory that the covering younger surgeon was protecting an older colleague. He accused this surgeon of lying on multiple levels, without a shred of evidence except that in the expert's experience (and he admitted he hadn't performed the procedure in question for years) the outcome could not have occurred in the absence of negligence.

This board investigated the case and felt that the expert's unsupported testimony showed a lack of integrity that reflected poorly on the profession. In his defense, the disciplined physician claimed that he had said the opposite of what the court reporter had officially recorded, and it was all a typographical error. My role was merely to educate the board members about the proper role of an expert witness under the law, based on an article I wrote from the perspective of a lawyer for the journal of the Federation of State Medical Boards.

The board ultimately sanctioned the expert, suspending his (already lapsed) license for 1 year for unprofessional conduct in the practice of medicine. But despite the relative toothlessness of the discipline, the aggrieved expert sued the board. A court in that state (where judges are elected, not appointed) reversed the board's action. Indeed, the board and I were accused in both lay and quasi-legal publications of protecting bad doctors by discouraging good experts from coming forward to help injured patients. To its credit, that board worked to include the provision of expert witness testimony as part of the Federation of State Medical Board's Definition of the practice of medicine; but I have yet to hear of another state that has had the courage to discipline an expert for false or misleading testimony.

A few boards have disciplined doctors (or physician impersonators) who have inflated or even fabricated their credentials as expert witnesses as examples of unprofessional conduct (or practicing medicine without a license). But generally, there is little regulation of expert witnesses by anyone because their testimony is largely shielded from public awareness, known only to parties in the case.

A number of medical professional societies have adopted ethics policies governing medical expert testimony by members. These usually require that the expert be familiar with the standard of care and view the facts to form an opinion without a bias toward one party or another. Some require experience in the field or subspecialty area that is the basis for the case, and some specify that such practice must be recent. And while several contested expert witness ethics cases made headlines in trade journals (usually when the expert sued the society for defamation), I haven't heard about any recently.

My own society, the American College of Emergency Physicians, established an ethics policy governing the provision of expert witness testimony. Part of this policy involved an attestation by all new and renewing members that they would abide by the policy, and would be willing to submit any testimony to review by fellow members, if asked.

I heard about one case where a would-be expert member was presented with the ACEP attestation by a deposing attorney, and after reading it (apparently for the first time) got up and left the deposition, which ended the case. In a later employment case, I myself was presented with this attestation and asked whether I was aware of it. I asked for time to review the document and then responded. "Well, yes. In fact, I wrote it. It was written in anticipation of medical malpractice cases, but I'm happy to say that it certainly applies in other types of cases such as this one, and of course I am willing to sign it." (That case also settled quickly.)

ACEP actually had the courage (or temerity) to discipline a past president who had a late career in expert testimony. This action was not without controversy. When you get down to it, no professional society has much incentive to expel any dues-paying member and no real power to discipline any non-member. One association that planned to publish what they called the "Remarkable Testimony" of expert witnesses was set back when a quoted expert unexpectedly completed suicide. Policing expert testimony, by anyone or any organization, is not for the faint of heart.

But What Constitutes Unethical Expert Testimony?

All medical society policies are in agreement that providing testimony on a contingency basis ("We win, or you don't pay") is unethical. The given reason is that contingency payment promotes advocacy by the expert, who may exaggerate the merits of a case or downplay its weaknesses, in hopes of achieving a payout. (Though, perhaps we just want to differentiate ourselves from plaintiff attorneys who routinely operate on contingency in the US.)

US law followed English Common Law, which stipulated that only physicians/surgeons could set their own standards of care; and that is why medical expert testimony is required in US courts except under very limited circumstances. However, not all state expert witness rules even require that medical expert witnesses against physicians be physicians, let alone be trained or certified or recently practicing in the specialty of the defendant physician. Rules about who can provide expert witness testimony in some states were relaxed during a (long) past era when there actually was a "conspiracy of silence" among physicians in the US.

The duty of the medical expert under US court rules is to educate judges and juries as to scientific and medical matters outside the realm of common knowledge, to equip them to render a decision in a legal dispute. In order to preserve a pool of willing medical experts, our judicial system makes it practically impossible to sue or countersue an expert witness, although that is the first impulse of many a physician defendant.

In order to be a neutral educator and not an advocate, an ethical expert witness must:

  • Restrain the natural impulse to become part of a team advocating either for plaintiff or defendant;

  • Demand to review all of the data available in the case, without allowing extraneous theories or opinions to cloud any of the material before a provisional opinion can be formed;

  • Be willing to ask for additional information as it becomes available; and then, most critically,

  • Be willing to change a provisional opinion if it becomes untenable — which is not easy to do!

As we've covered, changing your opinion midstream will predictably shorten your career as an expert. There have also been attempts to sue expert witnesses who have had the courage to do so.

Experts may be asked to provide different types of opinions. In several states, an expert must be found to certify that a case has merit before a case can even be brought to a court, and in some states it is even normal for an expert to "certify" cases anonymously.

In some states, a written opinion will be used at trial, and in others, live or recorded testimony. In most cases, a sworn and transcribed deposition will be obtained in advance of trial and may be used by the opposing side to discredit or "impeach" a witness at trial. An expert has a continuing ethical duty of honesty and candor toward the court, made much more difficult when additional facts come to light that could alter the expert's honest opinion.

At the very least, an expert has an obligation to attempt to determine the applicable standard of care, which is not as easy as it sounds. Legally, the standard is essentially what a reasonable physician would do under similar circumstances. It is not textbook or perfect care but rather what is typically done by other clinicians in a like environment.

Emergency Physicians Monthly's longstanding "Standard of Care Project" feature polled readers about whether the standard was met in a detailed actual medical-legal case scenario. Reader responses predictably ranged from "That was perfectly reasonable care" to "That is the worst malpractice I've ever heard about!" And yet, experts are pressed to name a standard as if it is a perfectly knowable fact.

Too often, expert witnesses will testify that there is a bright line in order to appear definitive, when the line is all too indistinct. But such an admission would inspire neither confidence nor repeat business. The important thing, no matter which side your expertise may be lent to, is to be conscientious, candid, and have reasonable scientific backing for your opinion.

I feel as if I've gone on about my brief foray into serving as an expert witness. If you wish to learn more, see my series We Have Met the Enemy or let me know what I have missed. For even more on this topic, please see Expert Witness Testimony.

Previous blogs in the Lessons Learned From Litigation series:

An Unwelcome Initiation Rite
An Accidental Expert Witness
Practical Advice for Those Considering Expert Witness Work<
An Intentional Expert Witness

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About Dr Louise Andrew
Louise B. Andrew, MD, JD, is a fifth-generation physician/attorney and a leader in the American College of Emergency Physicians and, recently, the American Medical Association. She cofounded a number of physician service organizations and has received numerous national and international awards. Throughout her career in emergency medicine and since, she has maintained MDMentor.com and Black-Bile.com, websites supporting physicians. She teaches, counsels, testifies, and mediates for physicians, hospitals, and others on aspects of physician wellness, behavior, litigation and regulatory stress management, medical expert witness issues, disability, and physician suicide prevention.

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