Unethical Medical Expert Witness Testimony:
A Bold Proposal for Reform and Action
David M. Priver, MD
Coalition and Center for Ethical Medical Testimony
If you are completely satisfied with the state of
medical jurisprudence in this country, do not read any further.
Item 1: A young Texas man involved in a work related incident was sent to the local Emergency Department (ED) for a mandatory drug screen. In an effort to dilute the screen, before presenting for testing, he consumed over 3 gallons of water. In the ED he became agitated and had to be sedated for brain imaging using Haldol, a very commonly employed agent typically given IV in urgent situations. The next day, he lapsed into a coma and died from pathologic water intoxication. An expert witness, using the Physician's Desk Reference (PDR) as his only information source, testified that the drug should not have been administered intravenously, and that this had caused the patient's death. A verdict was reached against the emergency physician who later committed suicide, citing the desire to shed light on the problem of unethical expert witnesses.
Item 2: A 28 year old Chicago woman delivered a healthy baby in June 1998. A good number of OB/GYN journal articles had discouraged the use of episiotomy, and the delivering physician did not perform one. A laceration into the rectum occurred which was recognized and repaired in the standard fashion. The woman subsequently filed a lawsuit against her obstetrician. An OB/GYN expert testified that it was negligent to fail to perform an episiotomy and that this negligence caused scarring and dyspareunia. This testimony flies directly in the face of well documented evidence that the performance of episiotomy leads to more such lacerations, not less. A jury awarded the woman more than $500,000.
Item 3: A 26 year old female tested positive for group B Streptococcus (GBS) in her 37th week of pregnancy but was delivered by another obstetrician who did not attempt to retrieve the positive test result. Although the infant was unharmed, the mother developed Group B strep meningitis and now suffers permanent epilepsy. An infectious disease expert witness testified that the infection resulted from GBS colonizing the mother's normal low back skin injected through an accidental thecal puncture during an attempted administration of epidural anesthesia, and further that high dose Penicillin prior to delivery would not have prevented the mother's infection. Based on the latter testimony, the jury found the defendants negligent, but denied damages for lack of causation. The world's literature reveals no known cases of GBS colonization of normal back skin, since it requires a moist damp environment.
What can be made of these cases? These three reflect only a tiny sample of recent cases reported. It is evident that there exists a problem with dishonest and unprofessional testimony, both for the plaintiff and the defense. Additionally, over the past decade, there has been a growing concern for what has come to be called "junk science" in the courtroom. By creating fanciful and unscientific theories, experts have often misled juries into rendering verdicts that are unjust. In many instances, the welfare of patients has been compromised as a result. In the early 1980s the very effective "morning sickness" drug, Bendectin, was pulled from the market after its manufacturer had expended millions of dollars in defending it against altogether unsupportable claims that it had caused birth defects. Since then, hyperemesis of pregnancy has become much more difficult to treat. Similarly, silicone breast implants were taken off the market by the FDA after hundreds of lawsuits, fueled by junk science testimony, contended that they caused any number of physical ailments, none of which has ever been verified. Here again, patients clearly have been the losers.
The patients, however, are not the only ones who lose. The domino effect of unethical testimony upon the medical profession can hardly be overstated: when physician experts testify dishonestly in court, the credibility of the medical profession suffers, malpractice cases without merit proliferate while some with merit fail, malpractice insurance premiums skyrocket, and young physicians are driven away from high-risk specialties. The field of OB/GYN has become so inundated by lawsuits that its training programs are finding themselves largely without applicants. Young physicians have correctly determined that there are far less stressful ways to make a living. It is anyone's guess who will be delivering the coming generations of babies in this country.
What policies are in place to police expert witnesses? Few, to date, have been effective. Since 1997, it has been the position of the American Medical Association that expert medical testimony by a physician constitutes the practice of medicine and, therefore, should be subject to peer review. Despite this, only a handful of cases have been peer reviewed and few physicians disciplined. The reasons for this are various. A good many physicians have been so traumatized by the ordeal of malpractice that they want only to put it behind them. Others are fearful that filing a grievance against an expert could result in filing of a lawsuit by the expert against them. Finally, despite being matters of public record, the details of lawsuits can be exceptionally difficult to expose and some believe that exposure could subject the one who exposes them to charges of violation of HIPAA.
It is apparent that there is a need to shine a bright light upon the problem of unethical testimony in general and by physicians in particular. Patients cannot be expected to have confidence in a physician's ability to care for them with honesty and integrity when they see some behaving as "hired guns". For physicians to continue to be respected as members of a noble profession, there must be a system of ethical accountability in medical jurisprudence equal to that which exists in the arena of clinical medical practice.
A Bold Proposal for Reform
A group of concerned individuals - physicians, attorneys, and others - representing widely divergent specialties in different geographic areas, has come together to create an organization which has committed itself to achieving accountability of experts. The Coalition and Center for Ethical Medical Testimony (www.CCEMT.org) has as its major goal the establishment of ethical standards both for testifying experts and the attorneys who hire them. The CCEMT's positions seek to be genuinely fair and balanced Ð between medicine and law, between plaintiff and defendant.
CCEMT's proposals requiring experts to adhere to an Ethical Accountability standard will not impair access to justice for plaintiffs with legitimate claims: experts who abuse their position of trust on behalf of defendants would be scrutinized as rigorously as plaintiff's experts. Indeed, plaintiffs with meritorious claims would be more likely to prevail as defense experts would be discouraged from testifying dishonestly against them. Arguably, when all sides are required to meet reasonable standards for ethicality and truth telling, the system is empowered to do what it is intended to do: assure justice for all.
CCEMT is currently conducting a nationwide education and membership campaign. The goal of ethical testimony reform from within Ð particularly reform spearheaded by two professions ordinarily thought uneasy bedfellows Ð is, indeed, a bold proposal. But then, 'bold' well describes CCEMT's accomplishments to date:
- CCEMT has published examples of unethical testimony, complete with names, on its website. So as to ensure fairness, it has offered the offending testifiers the opportunity to justify their courtroom statements. Almost without exception, none have done that. Instead the CCEMT receives threatening letters, but publishes anyway, believing that exposure of dishonesty in front of one's peers is a powerful disincentive to such behavior.
- CCEMT has had an impact upon major medical associations, such as the AMA and a number of specialty societies which have adopted 'expert witness affirmation statements" which are designed to facilitate regulation of expert witnesses by colleagues.
- In May 2004, the Federation of State Medical Boards passed a resolution requiring that "A Guide to the Essentials of a Modern Medical Practice Act" indicate that "false, fraudulent or deceptive testimony given by a medical professional while serving as an expert witness should constitute unprofessional conduct, as defined in the act."
- CCEMT maintains a members-only library of articles related to expert witness issues. Filled with scholarly material, this library was recently voted by members as the most popular service offered to them.
- CCEMT has received the attention of the media with presentations by The ABA Journal, The American Lawyer, American Medical News, The Chicago Tribune, The New York Times, The New York Daily News, Physicians Financial News, Physicians Money Digest, JAMA, Cutis, CNN, and more.
A Call to Action
If you share the view that expert witnesses must be held to an ethical standard, which will insure honesty and integrity in the courtroom, then join our efforts by becoming a member of CCEMT. This worthy cause can be accomplished at the minimal rate of about 30 cents per day or less than you spend for your daily newspaper. The projects, which we have already initiated as well as others we are planning, can only be accomplished if we have a solid base of members. If you wish to serve on one of our committees, we would welcome it.
Please sign on to our website at www.ccemt.org. You will find there information about becoming a member. Read about what we have done and what we hope to do soon. See if you do not agree that this effort is worthy of your support. We hope the time will come when you will be able to participate in a medico-legal system that reflects fairness and honesty. At that point, you will be gratified to realize that you played a role in that monumental accomplishment. Future generations of physicians and other medical providers will be forever in your debt. For them, as well as for yourself, we encourage you to join with CCEMT in a mutual effort to achieve accountability in the arena of professional testimony.
"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success than to take the lead in the introduction of a new order of things because the innovator has for enemies all those who have done well under the old conditions and lukewarm defenders in those who may do well under the new."
Machiavelli, The Prince