Physicians giving expert testimony are regulated by law, professional associations

Increasing debate on the possibility of defamation has brought new attention on expert witness programs and ‘qualified privilege.’

Lawrence H. Brenner

B. Sonny Bal

In civil actions involving alleged negligence on the part of a professional, such as a claim of medical malpractice, expert testimony serves to educate the court and jury on the relevant standard of care to which the professional must be held. Evidence law allows a wide berth for expert witnesses. A person sworn as an expert during a trial can testify based on personal experience and insight; on observation and examination of other evidence submitted at trial; or even on out-of-court observations and knowledge of statements made by others in the profession. Ordinarily, such testimony would be inadmissible as hearsay.

The legal profession has long recognized the limitations of expert testimony. The Supreme Court of the United States clarified the parameters needed to qualify expert witnesses testifying in federal courts in Daubert v. Merrell Dow Pharmaceuticals, a 1993 case in which each side produced expert testimony contradicting the other. Since that case and its progeny, federal judges have had discretion to exclude expert testimony that falls short of standards for reliability, scientific methodology, empirical testing and peer review.

Both the legal and medical professions must contend with self-declared expert witnesses, who promote their availability to testify before courts in return for financial compensation. Reports of lucrative compensation for expert witnesses fueled concerns that some individuals were abusing the judicial process, and that the safeguards provided by Daubert and its offspring of legal cases were insufficient to protect defendants from overly zealous expert testimony that might mislead the court and jury, misstate the relevant standard of care, and impede justice.

Professional associations

In response to such concerns, a number of medical societies and professional associations, including the American Academy of Orthopaedic Surgeons, have developed programs to monitor expert witness testimony delivered by association members. These programs allow members to file complaints against fellow members who have testified adversely in a medical malpractice trial. A committee of association members typically reviews the suspect testimony and sanctions the testifying expert if the testimony is deemed inaccurate and misleading.

The proliferation of expert witness programs has provoked much controversy.

While courts have generally viewed the programs as assisting the judicial process, critics claim that the impact has a chilling effect on the willingness of physicians and surgeons to serve as expert witnesses for plaintiffs in malpractice cases. Furthermore, plaintiffs and their attorneys who have been the target of questionable testimony delivered by the defendant’s expert typically do not benefit from professional expert witness programs.

One reason why courts have upheld the legality of expert witness programs is that the professional associations which developed them are private and possess more latitude than government organization in restricting the freedom of speech of their members. However, this private status may create exposure to new forms of litigation, as a recent Minnesota court ruling suggests.

Defamation cases

The May issue of Trial magazine reported on the February case of Yancey v. Weis, which resulted in a verdict for the plaintiff. The jury found the defendants defamed the plaintiff, ophthalmologist Charles Yancey, MD, when they reported to the American Academy of Ophthalmology (AAO) that his testimony against them was misleading. Yancey had previously appeared as an expert witness for a patient in a medical negligence suit and a refractive surgery center. After the defendant, Weis, was found liable, he and his expert witness, Dr. Hardten, sent a letter to the AAO, complaining that many of the statements made by Yancey were designed to deliberately mislead the jury.

In turn, Yancey filed a defamation lawsuit resulting in a trial in which the jury found that the statements made by Weis and Hardten had indeed defamed Yancey. The jury awarded Yancey $350,000 for compensation for “future harm to his reputation, mental distress, humiliation, and embarrassment.” Significantly, Yancey won two pretrial summary judgment motions against the defendants, including a key ruling that their actions in reporting him to their professional organization were not immunized by the federal Health Care Quality Act (HCQIA). Earlier case law had been unsettled on this point, suggesting that physicians critical of expert witnesses who reported such experts to a private medical associations may have immunity from lawsuits under this federal act. Instead, the Minnesota court said that nothing in HCQIA, “Provides or reasonably implies [a] professional body is empowered to review the quality of a physician’s testimony in a medical malpractice proceeding.”

Proponents of medical society peer-review programs believe that these programs serve as a useful check against false and misleading testimony. Opponents believe that the court systems already have suitable mechanisms in the examination, cross-examination, and impeachment of witnesses; and that the only function of peer review and sanctioning of experts is to intimidate witnesses. In the wake of the Yancey v. Weis ruling, this debate is likely to continue.

“Qualified privilege”

The unanswered question from the above ruling is whether the defendants in Yancey v. Weis were protected by what is known in law as a “qualified privilege.” Qualified privilege protects an individual whose concern for public safety results in a complaint being filed with a governmental or quasi-governmental agency. While qualified privilege does not create a complete barrier to the filing of a suit by the individual against whom the complaint has been filed, it does create substantial obstacles to the suit being successful. An individual suing someone, who has the benefit of a qualified privilege, for defamation must demonstrate malice. Malice is one of the most difficult elements to prove in a defamation lawsuit as it relates to the party’s intent to cause harm.

In Yancey v. Weis, did the defendants claim they were protected by a qualified privilege and if so, did the court rule that they were entitled to the qualified privilege? If the court held there was no qualified privilege, then Yancey’s burden of proof in his defamation lawsuit would be limited to showing that the allegation of his expert testimony being misleading was false. He would not have been required to prove that his opinion was correct or supported by the medical literature. He would only need to prove that his testimony was not designed to mislead the jury.

Willingness to testify

The Yancey v. Weis case is important because in defamation cases involving either business reputation or professional reputation, the plaintiff need not prove damages; such damages are presumed to have occurred. In future lawsuits, will the individuals who sit on the committees be vulnerable to defamation suits? Will professional associations be subject to defamation suits?

Even before Yancey v. Weis, skilled lawyers were capable of creating a favorable impression of plaintiff’s experts by demonstrating their willingness to testify in the face of an expert witness program that allowed the defendant, but not the plaintiff, to file a complaint.

Whether association expert witness programs are beneficial or harmful remains to be seen; and the role of the expert witness in malpractice litigation remains complex and unsettled. Nonetheless, the best approach to assure credible expert testimony is to educate physicians and surgeons on how to be effective witnesses at deposition and trial.

In future OMLA issues we will discuss the role of an expert witness in greater detail, and continue to investigate the facts and the court ruling so that the full impact of the Yancey v. Weis decision can be understood by the orthopaedic community.

For more information

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.