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Readers respond to expert witness testimony
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In a previous article, we wrote about the case of surgeon Melvyn Flye, MD, and its impact on expert witness testimony. Flye was charged by state prosecutors with felony perjury for misrepresenting his credentials and licensure under oath. He testified frequently as an expert witness for injured plaintiff patients. On more than one occasion, he had offered misleading information during sworn testimony; this eventually led to Arkansas prosecutors filing felony charges against him. Several readers weighed in about their peers who testify in medical malpractice cases. We devote this column to re-visiting this controversial and important subject. The reader opinions offered in this article are representative of the communications we received in response to that column.
One reader, an orthopedic spine surgeon with experience in expert testimony, remarked that actions by medical boards, professional societies and the courts have had a chilling effect on the willingness of orthopedic surgeons to serve as consultants and experts to medical malpractice lawyers. This surgeon advanced the proposition that well-intentioned efforts to control misleading expert testimony against doctors may have a negative impact for orthopedic surgeon defendants in malpractice litigation.
Lawrence H. Brenner
Many medical societies, including the American Academy of Orthopaedic Surgeons, have instituted programs to identify erroneous, misleading, or untruthful testimony offered by their member physicians. Many readers commented that professional guidelines set forth by medical societies target only those who testify for plaintiffs. In many instances, only members or fellows of respective medical societies can file grievances against peers who have testified against them in medical malpractice actions.
Our reader said that “Dr. Flye was apparently in significant demand as an expert witness, even though he had been failing in his surgical career and lying about his credentials for some time. The reason this happened is that plaintiff’s attorneys are absolutely desperate for experts, to the point where they obviously let down their guard. While I am in favor of the efforts that specialty societies have gone to in creating ethics guidelines for experts, I fear that they have choked off the supply of experts to plaintiff’s attorneys to the point where it is detrimental to medical truth being presented on the witness stand. Your article further reinforces that opinion… I am frequently asked to be an expert witness in neurosurgical cases, because plaintiff’s attorneys can’t even find willing neurosurgeons to even review the cases, much less to testify. Ironically, I usually say yes when asked, because I don’t have to worry about a neurosurgeon complaining about my testimony to the American Academy of Orthopaedic Surgeons. It shouldn’t be that way, but it is.”
Standard of care
Philip Peters, a law professor at the University of Missouri, has reported on studies where panels of physicians were asked to categorize a malpractice claim as frivolous, ambiguous, or clearly meritorious. In all the studies, juries reached a defense verdict in more than 50% of the cases in which physician panels independently determined the plaintiff’s claim was meritorious. If these data are accurate, they suggests some defense expert witness’ testimony may be at odds with the standard of care.
Returning to the case of Flye, he had testified in a case involving transection of the common bile during a laparoscopic cholecystectomy. One can argue whether such a transection is an acceptable complication of a laparoscopic cholecystectomy. Avoidance of this error entails that the surgeon must conclusively establish whether the duct is being divided when removing the gall bladder. If there is doubt, the procedure can be converted to an open technique or an intraoperative cholangiogram can be done. Arguably, if these simple safety rules are followed, the common bile duct should never be transected. If an expert testifying for a defendant doctor stated that transection of the common bile duct is an acceptable complication and therefore not negligent, is this statement an accurate reflection of the standard of care?
When laparoscopic cholecystectomy was introduced, competing expert witness testimony in bile duct transection cases was rendered moot by videotapes recorded by surgeons and given to patients or kept in the medical file. These videotapes showed that the wrong structure was being divided and established that the surgeon was negligent. In part, because of the liability exposure, the routine videotaping of laparoscopic cholecystectomies stopped.
B. Sonny Bal
Societal interest
Medical boards, state medical associations and medical societies have an interest in punishing physicians who attest to indefensible fictions under oath. Malpractice lawyers for defendant physicians agree that such experts contribute to frivolous claims, increased malpractice premiums and erroneous malpractice jury awards. George Indest, a Florida health care attorney and professor at Barry University School of Law in Orlando, estimates at least 10% of expert testimony he has encountered involved fringe science or outright fraud. Indest cites the example of an expert who signed an affidavit certifying professional negligence, even though the expert had never asked for, received or reviewed the medical records.
Both plaintiff and defense experts may be culpable in this regard. “I’ve seen defense experts give the most amazing false testimony,” said Barry Nace, JD, a Washington, D.C., malpractice plaintiff attorney who is former president of the Association of Trial Lawyers. “If (medical boards) are going to start disciplining plaintiffs’ experts, they better be prepared to review defense witnesses.” However, the elimination of so-called hired guns who are willing to testify to anything for a fee, is not an easy matter. “Subjecting doctors to the threat of professional sanctions for their statements under oath would conceivably intimidate good practitioners as much as bad ones,” wrote Michael S. Victoroff, MD, in Managed Care.
As our reader opined “After 70 depositions and 15 jury trials, I will say definitively that the only false testimony I have heard on the witness stand or in depositions came from defense witnesses. Now that we have the Academy’s expert witness ethics guidelines, it seems like you can tell any lie to help exonerate a fellow surgeon of malpractice, but you must be extremely careful what you say on behalf of a plaintiff. I was involved in a case where a local university professor testified one way a few years ago in a deposition and then he testified the opposite thing when he was called in as a defense witness in a different case. I was involved in a case in Salt Lake City where an unsupervised second year orthopedic resident screwed up, leading to the death of a patient, and the family sued because they were promised an explanation that they never got. The entire university faculty stonewalled to the point where it was like trying to pull teeth to get them to say anything on the witness stand, much less the truth.”
Expert witness testimony is a provocative and controversial subject. Understandably, both lawyers and surgeon readers who replied to article about Flye share concerns about the quality of expert testimony being offered in malpractice litigation.
One way to assure quality expert testimony is to remove obstacles that prevent orthopedic surgeons from fairly, objectively and independently reviewing cases for patients and their attorneys. Such experts would be in a position to establish a relationship of trust with the plaintiff’s counsel. As a byproduct of this relationship, the expert could assist plaintiff’s attorneys and their clients by educating them about the poor outcomes that can occur even when the highest quality of care is provided. This, of course, requires that these same experts be willing to testify on behalf of the plaintiff when they review a case that is meritorious.
What do you think?
Is it possible that, because of sanctions against plaintiffs’ experts, more so-called frivolous malpractice claims are being filed because plaintiff’s lawyers only have access to unreliable and poor-quality expert witnesses who are willing to testify regardless of the merits of the case?
Do you think medical societies should conduct a study to identify the extent to which their member physicians’ testimonies, whether on behalf of plaintiffs or defendants, are inconsistent with the standard of care?
Do you think that patients and their attorneys should be able to file grievances against experts who testify for defendant doctors with their respective medical societies?
By potentially silencing expert witnesses for plaintiffs, are medical societies abrogating the constitutional right of access to courts for injured patients?
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Disclosures: Bal and Brenner have no relevant financial disclosures.