Published 3/1/2003
B. Sonny Bal, MD, MBA

Peer oversight of expert testimony

In many medical liability lawsuits, expert testimony is essential for jurors to understand the applicable standards of care. Historically, doctors who testified in court for or against the conduct of a peer alleged to have committed medical malpractice were given enormous deference by the U.S. legal system. In deferring to testifying doctors, the judiciary gave them unusually expansive immunity against liability for anything said under oath on the witness stand, except for clearly fraudulent testimony or obvious illegal conduct.

Several factors have made the role of the physician expert witness increasingly more visible, including the following:

  • an explosion in information technology and advertising by self-acclaimed experts
  • a decline in physician reimbursement
  • an increase in the number of physicians willing to testify
  • an increase in the incidence of medical liability litigation
  • the passage of state statutes that required certification of medical malpractice by a doctor before a case could be filed.

The selfless, altruistic doctor who testified as a friend of the court to serve the cause of justice became a consultant who advertises on the Internet and offers expert testimony in return for monetary gain.

Professional oversight
Concerns that erroneous and misleading expert testimony would burden the medical profession and encourage frivolous lawsuits prompted several medical societies to develop programs to monitor their members’ expert testimony. In 1983, the American Association of Neurological Surgeons (AANS) began monitoring expert witness testimony delivered by its members in a judicial forum and established professional sanctions for improper testimony.

Other medical societies followed the AANS example. The AAOS professional compliance program was established with overwhelming support by members. Fellows who are alleged to have violated the Standards of Professionalism on Expert Witness Testimony and, through an established grievance procedure, are found to have done so, may be censured, suspended, or expelled. Actions taken against members are reported to local, state, and national agencies charged with monitoring professional physician conduct (as appropriate).

The first challenge to the legality of professional oversight is instructive in understanding the nature and validity of such programs.

The expert witness on trial
Neurosurgeon Michael Ditmore, MD, performed an anterior cervical spine fusion on a patient. Complications followed including a paralyzed vocal cord, difficulty in swallowing, and shortness of breath that ultimately required a tracheostomy tube insertion. Records showed that the surgeon followed appropriate indications for surgery. In a lawsuit that alleged medical malpractice, the plaintiff’s expert witness, neurosurgeon Donald Austin, MD, testified that the patient could not have suffered a permanent injury to her recurrent laryngeal nerve unless the surgeon had been negligent.

Expert opinion contrary to Dr. Austin’s testimony resulted in a verdict for the defendant. After this outcome, a complaint was filed with the AANS to investigate Dr. Austin’s testimony. The investigation underscored the difficulty in viewing the recurrent laryngeal nerve, which is often not visualized during an anterior cervical disk removal.

Dr. Austin had argued that Dr. Ditmore must have rushed the operation and retracted tissues adjacent to the recurrent laryngeal nerve such that an injury resulted. No evidence supported this allegation. Dr. Ditmore noted that Dr. Austin had performed only 25 to 30 anterior cervical operations during his 30-year career, whereas he had performed more than 700 such operations with only this single case of damage to the recurrent laryngeal nerve.

Dr. Austin claimed to have based his expert opinion on two articles—one that asserted that serious comp­lications are avoidable and can be prevented by strict adherence to surgical technique, and the other that stated the key to preventing traction injuries to the recurrent laryngeal nerve is not to retract vigorously into the soft tissues.

Discipline of the expert witness
The AANS review showed that neither article truly supported Dr. Austin’s testimony. The first had a general statement of reassurance about the avoidability of serious complications of anterior cervical fusion; the second never suggested that all traction injuries to the recurrent laryngeal nerve could be prevented by gentle retraction.

Following disciplinary hearings in 1996, the AANS suspended Dr. Austin for 6 months. After appealing this outcome twice and losing both appeals, Dr. Austin resigned from the AANS and never sought readmission.

In 1998, Dr. Austin filed suit in a federal district court, alleging that the AANS had violated his due process rights. He alleged that by testifying against errant doctors, he refused to shield incompetent doctors, and the AANS retaliated against him. He also alleged that the disciplinary charges filed by the AANS diluted his value as an expert witness for hire, thereby depriving him of income as an expert consultant.

The district court found that the law gives professional organizations broad latitude to manage their internal matters; judicial interference is allowed only if a substantial economic interest of the aggrieved member was harmed, if the association failed to act in accord with its own constitution and bylaws, or if its actions violated due process, or were influenced by bias, prejudice, or lack of good faith. In finding that the AANS had complied with fair disciplinary hearings before an impartial tribunal, consistent with fundamental principles of justice, the district court said that the AANS had “more than met these standards” and terminated the case at an early stage by granting summary judgment in favor of the AANS. Neither did the court agree with Dr. Austin’s assertion that the AANS rules violated public policy by discouraging physicians from testifying against errant colleagues.

Appealing the judgment
Dr. Austin appealed to the U.S. Court of Appeals for the 7th Circuit. Justice Richard Posner wrote the opinion for the 7th Circuit, noting that if the court accepted Austin’s testimony, it would make the surgeon an insurer against any complication during anterior cervical spine fusion, thereby making the operation an enormously risky proposition for the surgeon.

The court noted that membership in the AANS was entirely voluntary and that Dr. Austin’s consulting income had declined only modestly—to $220,000—after the disciplinary proceedings, neither of which amounted to an “important economic interest.”

In his opinion, Justice Posner wrote that “The [AANS] had an interest—the community at large had an interest—in Austin’s not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves. It is no answer that judges can be trusted to keep out such testimony. Judges are not experts in any field except law. Much escapes us, especially in a highly technical field, such as neurosurgery.

“There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert’s testimony, especially when it is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnessing is required, not less. Not that professional self-regulation is wholly trustworthy ... No doubt most members of the AANS are hostile to malpractice litigation, and this may impart a subtle bias to its evaluation of members’ complaints, though there is nothing in the transcript of the hearing before the Association’s hearing panel to justify such an inference.

“But even in cases such as this … the disciplined member … has recourse to defamation law should the discipline falsely impugn his professional competence … there is a strong national interest … in identifying and sanctioning poor-quality physicians and thereby improving the quality of health care. Although Dr. Austin did not treat the malpractice plaintiff for whom he testified, his testimony…was a type of medical service and if the quality of his testimony reflected the quality of his medical judgment, he is probably a poor physician. His discipline by the [AANS] therefore served an important public policy exemplified by the federal Health Care Quality Improvement Act …”

Dr. Austin’s appeal to the U.S. Supreme Court was denied, leaving the appellate court decision to stand as the law governing the power of a professional association to discipline its members for errant expert witness testimony.

Most physicians who offer expert testimonies in court provide a service by informing the legal profession about the correct standard of care for a medical issue. Such testimony can identify doctors who are not meeting the requisite standard and protect patients from poor quality doctors. But an ethical conflict exists; experts are paid for their testimony and the outcome of a legal case can increase the visibility and marketability of the testifying expert. Having a financial interest in the outcome of a lawsuit can conflict with a physician’s responsibility to protect the patient’s interest at all times.

This conflict does not mean that doctors should not testify or receive payment for testimony. The judicial system relies on experts to assist the efficient rendering of justice in our system, much as it relies on jurors to hear testimony and come up with an outcome. Ethical conflicts also exist for professional societies that monitor expert witnesses. Although such associations are charged with the competence of their members and safety of patients, they are also advocates for their members and want to protect them from unfounded malpractice claims.

Society depends on medical associations to monitor physicians because they are best suited to do so. Maintaining high standards of care can minimize litigation. To that end, professional associations have good reason to identify members who are not practicing within the standard of care. Likewise, these associations have reason to discipline members who testify recklessly, whether for or against a colleague in a medical malpractice action.

The American Medical Association’s Code of Medical Ethics recognizes that as professionals with special training and skills, physicians have an ethical obligation to assist in the administration of justice. It requires that medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise. It cautions that the expert witness should not become an advocate or partisan in the legal proceeding.

Professional associations provide a vital role in self-regulation of their members. They do so by articulating standards for expert testimony; such testimony helps the judicial system comprehend standards of care and discipline those physicians who consistently fall short of the standard. Ideally, the system can then compensate patients who are harmed by incompetent physicians. Also, by monitoring expert testimony delivered by their members, professional associations can sanction those who testify negligently, recklessly, or in bad faith, thereby ensuring the reputation of the profession.

B. Sonny Bal, MD, is a member of the AAOS Medical Liability Committee. He can be reached at balb@health.missouri.edu