Much Ado About Experts

Medical Associations Try to Rein in Experts, Tighten Judges' Discretion

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Cover Story -- December 2002  

By Walt Borges
Associate Editor  

With rising premiums for medical liability insurance threatening to put doctors out of business or force them to cut back services, Texas physicians and the Texas Medical Association are showing renewed interest in tightening the rules governing expert witnesses.

Legislation to link qualifications of experts more closely to the alleged malpractice and limit trial judges' discretion in determining who fits the bill as an expert is included in the tort reform package proposed by the Texas Alliance for Patient Access (TAPA) and supported by TMA.

TMA, a founding member of TAPA, also may ask the legislature to strengthen the Texas State Board of Medical Examiners' (TSBME's) authority to review expert testimony and discipline doctors whose testimony is found to be "unprofessional" in malpractice litigation.

"We are concerned about frivolous medical liability lawsuits," said TMA General Counsel Donald P. Wilcox, JD. "Frivolous suits can be filed and sustained only if the plaintiff finds an expert who is willing to support the claim. When an expert bases an opinion on bogus science or provides testimony that is outside the physician's expertise, we need to be able to throw that testimony out before it reaches a jury. We need to be able to get the trial judge to disqualify the expert or the testimony."       

The reforms are likely to garner substantial resistance from consumer advocacy groups and plaintiff's lawyers, who will argue that media reports about the TSBME's failures to discipline some doctors suggest that litigation is the only means of holding doctors accountable for their errors.

"It's pretty clear that lawsuits influence improper behavior," said Hartley Hampton, former president of the Texas Trial Lawyers Association. "I have little sympathy for efforts to further restrict testimony that is already governed by decades of case law and subject to appropriate judicial discretion. From the patients' side of things, the conspiracy of silence among medical professionals is already a huge hurdle to overcome in medical malpractice cases."       

Experts Essential  

While expert testimony is vital to many complex cases, in medical liability lawsuits it "provides evidence that the doctor departed from the standard of care, and establishes causation by testifying what the doctor did to cause an alleged injury," said Steven Goode, JD, a professor at The University of Texas School of Law and the law school dean for academic affairs.

TAPA-proposed reforms, says Brent Cooper, JD, a TAPA consultant, "require expert witnesses to be more qualified. We want them to have practiced in the particular area of medicine that they will be testifying about."

He contends that current law allows judges to decide if limited work in a specialty many years ago is enough to qualify a doctor as an expert witness. Judges often tend to err on the side of allowing minimal qualifications to suffice, he says. Retired doctors who are unfamiliar with recent practice trends and physicians who dabbled briefly in a specialty are sometimes admitted as experts, Mr. Cooper says.

He noted that many experts are itinerant "hired guns" who sometimes have minimal qualifications in the area in which they are testifying. For example, many judges permit doctors who completed only a residency rotation in a specialty to testify as an expert. "It's hard to believe that some judges allow that to be 'expertise,'" he said.

So, strengthening the specifics of what constitutes a qualified expert is just one reform, Mr. Cooper says.

"The other thing we are trying to do is make it easier for physicians to challenge experts who testify to the standard of care. We want to give the court more black and white standards to determine if an expert is qualified, instead of leaving it to the judge's discretion."

Impetus for Change  

The prospects for a crackdown on expert testimony have increased since a 2001 federal appeals court decision and the revocation of a neurosurgeon's license by the North Carolina Board of Medical Examiners.

In Donald Austin, MD, v. American Association of Neurological Surgeons , the U.S. 7th Circuit Court of Appeals ruled that specialty medical associations may discipline members whom it judges to have acted unprofessionally in testifying as experts. In refusing to review the case, the U.S. Supreme Court let the ruling stand.

The case arose when a patient whose recurrent laryngeal nerve was damaged during anterior cervical fusion sued neurosurgeon Michael Ditmore, MD, of Columbia, Mo. During the trial, Detroit neurosurgeon Donald Austin, MD, testified that the injury could have been caused only by Dr. Ditmore's negligence.

Despite Dr. Austin's testimony, a jury found Dr. Ditmore not liable for the injury.

Dr. Ditmore, who had performed more than 700 anterior cervical fusions, complained that there was no basis for Dr. Austin's assertion that most neurosurgeons would have found him negligent.

The American Association of Neurological Surgeons (AANS) convened its Professional Conduct Committee to hear the complaint, as it has in deciding more than a score of complaints since 1982. During the hearing, Dr. Austin said he based his opinion on two medical journal articles on the fusion procedure, and said he had not consulted other experts. His own expertise on the operation was backed by fewer than 30 fusion procedures during his 30-year career.

The committee decided the articles did not support Dr. Austin's opinion and cited him for inappropriate and unprofessional testimony, a violation of the AANS ethics code.

AANS suspended Dr. Austin for six months in 1996. Dr. Austin responded by suing the association under an Illinois law protecting professionals from retaliation by professional organizations if the organization acts in bad faith. The professional also must show that the sanction substantially affected his or her livelihood. Dr. Austin alleged that AANS acted in bad faith, since the society had only disciplined doctors testifying for plaintiffs in malpractice cases. He also complained that the suspension reduced his income as an expert witness.

In June 2001, a three-judge panel of the 7th Circuit unanimously rejected Dr. Austin's claims, noting he had been given substantial due process by AANS and continued to testify frequently in malpractice cases. In an opinion for the court, U.S. Circuit Judge Richard Posner, a darling of conservatives for his pioneering theories basing legal decision-making on economics, addressed the criticism that AANS displays an apparent bias against plaintiff's attorneys.

Judge Posner said defendant physicians are motivated to complain about experts because they have been personally and professionally attacked by the plaintiff's experts. On the other hand, a plaintiff's expert whose testimony is countered by a defense expert's flawed testimony is unlikely to feel the same sense of outrage, Judge Posner surmised in his opinion. After all, it's his medical opinion -- not his competency -- that is being challenged.

A Question of Bias?  

AANS General Counsel Russell Pelton, JD, acknowledges that a defense expert never has been subject to a sanction or hearing before the AANS committee. However, the lawyer points out that records in the Austin case show that all members of the Professional Conduct Committee and many AANS board members had been plaintiff's experts in other cases.

"We've had this program for 20 years," said Mr. Pelton. "It is essential to remember that the AANS professional conduct program is not aimed at punishing plaintiff's experts. Rather, the spirit of the program is to promote the integrity of expert testimony on both sides of professional liability cases."

Medical Economics magazin e reported that the AANS committee had reviewed 50 complaints. Of those, 27 cases resulted in hearings, Mr. Pelton says.

In recent years, one quarter of the complaints are dismissed without a hearing, the AANS lawyer says.

The AANS Bulletin indicates that over the last 15 years, 35 percent of those reviewed received a letter of censure, 25 percent had their membership in AANS suspended for six months, and 5 percent were expelled. In 25 percent of the cases, AANS found the complaints to be without merit. The remainder of those reviewed received informal letters of admonition or warnings.

The AANS policy reflects its concern over expert testimony. In its Illinois offices, AANS maintains a library of expert testimony allowing society members to check the consistency of expert witnesses. AANS also has adopted ethical policies that prohibit physician experts from accepting a fee contingent on the outcome of a case. Another ethical policy ensures that experts presenting an opinion different from those of other neurosurgeons must acknowledge the differing views.

To make its sanctions more effective, the society does not accept the resignation of members who are the subject of complaints, which might terminate the disciplinary process before action is taken, Mr. Pelton says. Once the sanction is levied, AANS will accept the resignation of the transgressing neurosurgeon, he says.

Critics, such as the Texas Trial Lawyers Association, have accused professional associations that sanction their members of using intimidation, of placing self-interest before the public interest, and of attempting to undermine civil jurors by creating a professional "super jury" of specialist physicians. Because of the criticism, AANS will not review complaints against experts until the litigation has been completed and all appeals have been decided, Mr. Pelton says.          

North Carolina Takes Action  

The other recent development that has lent impetus to expert witness reform was the action by the North Carolina Medical Board (NCMB) against Florida neurosurgeon Gary Lustgarten, MD. In July 2002, the NCMB revoked Dr. Lustgarten's North Carolina license after finding he acted unprofessionally by misstating facts and the appropriate standard of care during expert testimony.

Dr. Lustgarten's testimony also asserted that a physician had falsified medical records to protect a colleague, testimony the NCMB found to be unsupported by corroborating evidence and contradicted by other evidence.

Dr. Lustgarten still practices in Florida and has not been subjected to disciplinary action by the Florida Board of Medicine.

Mr. Pelton, of the AANS, says Dr. Lustgarten was suspended by the society twice, once because of his North Carolina testimony. Backed by prominent plaintiff's lawyers, Dr. Lustgarten challenged AANS, arguing its professional conduct review constituted a conspiracy, but he withdrew his case when it was transferred from a Georgia court to one in Illinois.

Dale L. Austin, deputy executive vice president of the Federation of State Medical Boards (FSMB), says most states have not decided whether expert testimony equates to medical practice, even though the American Medical Association urges state medical boards to adopt that interpretation.

"We have no policy on whether expert testimony is medical practice, but I would expect that most medical boards would agree that it is a form of practice," said Mr. Austin (no relation to Dr. Austin of Michigan). "If an expert uses a physician's credential, I think it would be viewed by most boards as a physician operating under his license."

Mr. Austin noted that medical boards often use physician experts to assess complaints against other doctors. If no board member practices in a specialty that is subject to a complaint, the boards "often will turn to panels of specialist physicians who have volunteered to help evaluate care," Mr. Austin said.

Mr. Wilcox says the Texas Medical Foundation (TMF), which conducts independent reviews of health maintenance organization decisions and other quality-of-care reviews, is a model for the right way to pick experts.

"We have a panel of 200 active physicians in all specialties," said Tom Manley, a TMF official. "When we need to review a medical record, we call on one of these physicians. We do not use retired physicians, and we credential the doctors on our panel."

Mr. Austin says most boards evaluate standards of care on a local basis, but he hesitates to criticize the use of out-of-state experts -- a common complaint -- noting that it may be difficult to locate an expert in smaller states.

He says disciplinary actions, such as those taken by the North Carolina board, would not prevent doctors from serving as experts in court. In fact, he believes that discipline against physician experts will be rare, if only because of the cost of the disciplinary process and the litigation that usually follows such actions. Many boards are underfunded and understaffed and must carefully marshall resources for the most serious disciplinary efforts.

"I don't know a state board on the hunt for these kinds of situations, but if it displays itself to a state board, the board must address it," says Mr. Austin.


The Expert's Tale

Misconception is often the most common conception about expert testimony, to hear one physician expert tell it.

Dr. X, a well-respected physician in North Texas, has testified frequently as an expert for more than 25 years. He also has been a defendant in medical liability suits and is active in state and specialty societies. He asked that his name not be used because his comments could be used against him in future lawsuits.

"Most of my testimony doesn't have much to do with liability," the doctor said. "Only five percent of my cases involve medical liability cases. Most of the cases are defense cases involving product liability, motor vehicle accidents, etc. I am called upon to review cases for both plaintiffs and defendants, but most of the defense cases in which I write a report either go away or are settled. I see patients and operate on patients four or five days a week. When testifying for a plaintiff, my testimony usually concerns future medical needs and costs in cases involving automobile accidents, physical injuries, or product liability."

He became an expert witness after testifying on several occasions for patients who had been under his care. Word of mouth directed other clients to him. He says he usually is contacted by lawyers who have learned of him through other attorneys.

If he agrees to look at the case, his initial review usually takes a couple of hours. Some lawyers drop off their cases in well-organized and indexed notebooks; others have provided him with six or seven boxes of unorganized material to review.

"About 25 percent of my income is derived from the reviews and expert testimony I provide, and that accounts for about 25 percent of my time. I'm working 80-hour weeks, performing four to six surgeries, and seeing 75 to 80 patients each week."

He is paid a set fee for the review, but charges an hourly rate if he is asked to participate in a deposition or trial.

"In specific cases, I testify on the standard of care," he said. "I've worked on both sides, but more often for the plaintiffs."

He disputes the image of experts as hired guns, although he acknowledges that some will find what they are paid to find.

"Most experts are not hired guns. In my situation, I turn down cases several times a year because I don't find a standard-of-care problem. Sometimes I turn them down because I just don't trust the lawyer."

He says he also lets defense attorneys know when there is a serious problem that he does not believe can be overcome. He says he urges settlement in those cases.

The surgeon supports the essence of the TMA-backed reforms, noting that strengthening the requirements for qualification is particularly valuable in eliminating experts who travel from state to state giving testimony. But, he said, "the legal system in itself is not consistently flawed."

The physician expert says judges must take a share of the blame for the problems. "Some judges are so political on one side or another that they rule from their political beliefs."

"Judges realize that their report card to the voters in the next election is likely to include a report of their reversals," he continued. "A few are reluctant to rule on some matters, such as the qualifications of an expert, for fear that their decision will be the basis of an appeal and a possible reversal. If they can let the jury do their work for them, they are saved the potential of a reversal. Those judges won't make rulings unless they have to."

He attributes some of the increase in medical liability cases that go to trial to the requirement that physicians who settle malpractice claims must be reported to the national data bank listing medical errors.

"Many physicians believe that the worst thing that can happen to them is to get their name in the national registry, " the surgeon explained. "Even when there is overwhelming evidence against them, they will not settle and they will go to trial."

A mixed response  

Dr. X says most doctors support his role in malpractice cases.

"I've had some physicians tell me I shouldn't have testified against another physician," the surgeon said. "On the other hand, more doctors come up and say, 'We're glad you're doing that. Thanks for tackling this problem.'"

"I don't think it serves the needs of the profession to have the professional stonewall when we have an unfortunate situation in Texas," the surgeon explained.

Although he is grateful for the support of his peers, the surgeon says that he is nonetheless aware of pressures not to criticize physician colleagues.

"Those pressures relate not only to medical malpractice expert testimony, but also to other processes as well, particularly to peer review in hospitals," the surgeon said. "While the peer review process is becoming more accepted, there are still circumstances where pressure is brought to bear. Usually it takes the form of a comment such as 'Go easy on my buddy.'"

Self-policing of the medical profession is sometimes ineffective, he says, allowing problems to persist. The Texas medical board is underfunded and has significant turnover among investigators, which lessens its effectiveness, the doctor says.

The surgeon says that many cases involve physicians who are not board certified. "There are many doctors in Texas who haven't been able to pass the boards the first time, and this is not about them. But after you've failed the board six or seven times, many people would think that's a sign of the problem."

Predicting outcomes in the courtroom is always difficult, the surgeon says, even when he is a witness."I try to get all the facts and records, and I carefully review every document and x-ray. In spite of that, I may not know all the facts," he said.

"Not every case comes out the way I thought it would. There are doctors who I thought were innocent who have been liable, and doctors who I thought were liable who were found innocent."

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