Published 11/1/2007
Alexander R. Vaccaro, MD

Holding medical expert witnesses accountable

Professional societies and physicians can make a difference

At any one moment in the United States, there are 60,000 open medical liability lawsuits, many with multiple defendants. Few would argue that patients who are negligently injured deserve redress or that physicians who are falsely accused of negligence deserve a vigorous defense. The AAOS position captures this sentiment in its introduction to the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony, which states: “It is in the public interest for orthopaedic testimony to be readily available, knowledgeable, and objective.” Fairness dictates that plaintiffs and defendants should have access to ethical expert testimony.

Orthopaedic surgeons who are burdened with what they perceive as frivolous lawsuits may believe that they are victims of unethical expert witnesses who testify with little knowledge or expertise regarding the standard of care. Proponents of medical liability reform are looking for methods to ensure truthful testimony and for ways to enforce sanctions if experts violate ethical norms.

The role of an expert witness
An expert witness provides a knowledgeable outsider’s opinion of what happened in a particular case. In a typical malpractice claim, the patient/plaintiff must establish that 1) the physician/defendant owed a duty of care to the patient; 2) the physician did not provide the appropriate standard of care; 3) the patient suffered an injury; and 4) the injury was caused by the physician’s deviation from the standard of care. Failure to establish any one of those four elements usually results in a verdict for the physician.

Expert witnesses for either the defendant or the plaintiff should not be advocates for the side they represent but should provide nonpartisan, scientifically correct, and clinically accurate testimony. Ethical testimony should be truthful, fair and impartial, based on the complete medical record, and evaluated in the context, time, and place of rendered care.

In any litigation, strong forces can push the expert witness into a more partisan role. Ethical standards dictate that physician experts not cross that line.

Medical society sanctions
A few specialty societies such as the AAOS have taken the lead in disciplining members who deliver testimony that falls below published minimum standards. The AAOS Professional Compliance Program Grievance Procedures allow a fellow or member to initiate a grievance against another fellow or member who allegedly violated the SOPs on Orthopaedic Expert Witness Testimony that were adopted by the fellowship, based on actions that occurred on or after April 18, 2005.

The grievance is reviewed by the Committee on Professionalism (COP), which is charged with reviewing the alleged violation and determining whether a hearing should be held. At the hearing, a panel from the COP listens to testimony from both the grievant and the respondent, and then submits a written recommendation on actions to be taken by the Board of Directors. Possible actions can be public censure, temporary suspension, or even expulsion from membership in the AAOS.

Additional alternatives
Unfortunately, many physician organizations have not yet adopted professional compliance programs such as those of the AAOS. Although many orthopaedic surgeons who testify as expert witnesses belong to the AAOS, there are exceptions. An expert witness who is not a member of the AAOS or who belongs to a society that does not have a professional compliance program probably does not face the prospect of professional sanctions in the event of false or misleading testimony, although some state licensing boards are beginning to take action against false testimony.

A possible solution would be for both patient and physician to agree, at the onset of treatment, that if a dispute arises, any type of adjudication will involve expert witnesses of good standing who belong both to the professional society (such as the AAOS) and to the same subspecialty (such as spinal surgery) as the treating physician.

Such services are now beginning to be available, and in my experience, patients are generally comfortable signing such agreements. The benefits are that meritless litigation is deterred and meritorious litigation is less likely to be contaminated with hyperbolic rhetoric of experts or attorneys.

Medical expert witnesses are charged with providing impartial, ethical testimony. Specialty societies such as the AAOS have taken the lead in enforcing minimum standards on members who deliver expert witness testimony. Alternatives such as patient-physicians contracts are closing the loop so that any litigation process compels the use of experts who are accountable.

Alexander R. Vaccaro, MD, is a fellow of the AAOS. He can be reached at alexvaccaro3@aol.com

Medical liability remains a major concern for orthopaedic surgeons across America. Although some states have enacted meaningful tort reform, many others remain “in crisis.” Even in the states that have passed reforms, physicians may find themselves facing lawsuits that have been facilitated by physicians who provide false or misleading expert witness testimony.

The AAOS has taken a strong position with the adoption of the Standards of Professionalism on Orthopaedic Expert Witness Testimony. However, such standards cannot prevent unethical expert witnesses from sullying the reputations of other orthopaedic surgeons unless the members of our fellowship challenge their behavior.

Nowhere has the specter of medical liability cast a darker shadow than in Philadelphia, where large awards to plaintiffs have prompted a sharp rise in medical liability premiums, forcing many high-risk specialists (including orthopaedic surgeons) out of the area. For this month’s column, I have asked Alexander R. Vaccaro, MD, to discuss how orthopaedic surgeons can stand up to those who travel the country providing false or misleading testimony. Dr. Vaccaro has been a leader in the fight for liability reform and has first-hand experience with venues for redress against these “experts,” through both the AAOS and other organizations.

The opinions expressed in this article are those of the author and do not necessarily reflect the position of the AAOS. This article is not intended as legal advice; consult an attorney to determine how the information presented applies to you.

Alan S. Hilibrand, MD