Should Courtrooms Bar ‘Hired Guns’ As Expert Witnesses In Malpractice Cases?

It is something that most of us dread being part of on either side of the courtroom, but more than likely if you have been in practice for any length of time you have been involved with medical malpractice in one form or another. I have certainly been involved in all aspects of the medical malpractice over my 20 years of practice.

There are a select few who choose to make being an expert witness their primary source of income, regardless of the merits of the case. These “colleagues” are most often shameless shills for the plaintiff attorneys. Although there are few “professional expert witnesses” for the defense, it has been my experience that most of these are actual practitioners and are truly trying to come to the aid of a fellow colleague.

There are many questions that surround this difficult situation that have to this point been inadequately answered. Should we as podiatric physicians be held accountable to a “customary” standard of care or “reasonable” standard of care? Are these two standards really different? Should an expert witness from across the country determine regional standards of care? Is there an adequate measure for assessing standard of care? Who determines the standard of care: physicians or juries? When will expert witnesses be held accountable for their testimony by oversight or peer review? These questions are difficult and may not have clear answers.

An article in the Wake Forest Law Review from November 2002 looked at several of these questions, utilizing a panel of 13 physicians and seven lawyers, all involved with medical malpractice.1 The panel of physicians did come to the consensus that the standard of care should be based on customary standards and that the use of reasonable standards could be misconstrued as ideal. The panel also reached a consensus on the current model of the adversarial system of law providing the best measure to facilitate justice. The panel did recommend that expert witnesses be held more accountable and disciplined when they abuse their role.

The American College of Foot and Ankle Surgeons has established expert witness guidelines.2 This document makes several outstanding points that I think some “professional” expert witnesses flatly ignore. Under section 3 of Impartial Testimony: “The foot and ankle surgical expert witness shall evaluate the medical condition and care provided in light of generally accepted practice at the time, place and in the context of care delivered.” This was a major contention in the Wake Forest panel discussion: Is the opinion rendered by the expert witness merely what he or she would do, or does it truly represent what other physicians would do in a given situation?

When You Are Approached To Be An Expert Witness

Personally, I have reviewed and served on several cases as an expert witness, been on several panels over the years and been a defendant in cases before. As an expert witness or on a review panel, I have always sided with the defendant. I think experts should be regional. I do not feel that a national expert witness can provide customary standard of care findings if he or she does not live in the region. I also think the plaintiff’s expert witness should be from the same city as the defendant as the causality of competition comes into play.

The case on which I served as an expert witness for the plaintiff was the most difficult decision I have had to make in my professional career. The location was three hours away from me so I felt I could be impartial and the competition factor would not influence me. In Indiana, malpractice cases go before a panel of three physicians. In this case, the panel decided 3-0 in the favor of the plaintiff. I was referred this particular patient to evaluate in person prior to any commitment on my part.

After I was approached to serve as an expert witness, I sought counsel on my dilemma from several colleagues I respect. Due to a multitude of circumstances, my colleagues encouraged me to proceed forward to “police our own.” I have reviewed and acted as an expert witness or served on review panels for over 20 cases. In every instance, I have been on the side of the defendant.

Weighing The Options For Tort Reform

Clearly, there is a desperate need for tort reform but unfortunately it does not appear to be imminent. There must be a way to eliminate lawsuits that are baseless and some method to remove these “guns for hire.”

The Wake Forest Panel discussed some interesting solutions for reform.1 One suggestion was that expert witnesses offer their services at no cost as part of a professional duty. This is a very interesting topic as I have thought about trying to establish something like this statewide in Indiana to aid defendants. I think we would see a lot fewer participants for the plaintiff side if this were the case. I know how long it takes to review these cases and the time involved for depositions and trials, but should we profit on this? I have been paid in the past for my involvement, but I have come to believe that providing expert witness testimony at no cost is in fact the more truly ethical approach.

Another topic discussed by the panel was a no-fault system but only one of the panel members advocated this.1 Court appointed expert witnesses were another consideration. This is a very interesting possibility; it is something I have not even thought about in the past. I think if the court appointed witness was a regional expert and not located in a competitive setting with the defendant, this could be a viable option. A similar recommendation was having state medical society certified expert witnesses.

Some of my biggest problems with the system are that bad outcomes do not equal malpractice. Complications happen and they are not malpractice. Just because you may do something differently than me does not make it malpractice. It comes back to that elusive topic of standard of care, more specifically customary standards. I know it is a long shot but here is to hoping for real tort reform.

References

1. Ely JW, Hartz AJ, James PA, Johnson CA. Determining the standard of care in medical malpractice: the physician's perspective. Wake Forest Law Review 2002; 37(3):861-875. Available at https://ssrn.com/abstract=347600.

2. American College of Foot and Ankle Surgeons. Expert Witness testimony standards and affirmation statement. Available at https://www.acfas.org/expertwitness/.