Report 18 of The Board of Trustees of The America Medical Association (1-98)

Expert Witness Testimony (Reference Committee B)

EXECUTIVE SUMMARY

This report responds to Resolution 221, which called upon the AMA to adopt policy that expert witness testimony be considered the practice of medicine subject to peer review. It also requested that the AMA study mechanisms by which such peer review could be conducted.

The report highlights the important role of medical societies and licensing boards in maintaining the integrity of physicians who provide expert witness testimony. It suggests that this role be carefully defined after first discussing some of the inherent difficulties, both conceptual and practical, in conducting peer review of physicians who provide expert witness testimony. The report also recommends working with state licensing boards to develop effective disciplinary measures for physicians who provide fraudulent testimony and suggests further study in collaboration with interested organizations.

REPORT OF THE BOARD OF TRUSTEES

Subject: Expert Witness Testimony
Presented by: Randolph D. Smoak, Jr., MD, Chair
Referred to: Reference Committee B
(Howard A. Richter, MD, Chair)

INTRODUCTION

At the 1997 Interim Meeting, the House of Delegates adopted Resolution 221. This resolution called upon the AMA to adopt policy that physician expert witness testimony be considered the practice of medicine subject to peer review (Policy H-265.993, AMA Policy Compendium 1998). It also requested that the AMA study mechanisms by which such peer review could be conducted, with a report due at the 1998 Interim Meeting.

This report discusses: (a) the importance and role of physicians, medical societies, and licensing boards in maintaining the integrity of physicians who provide expert witness testimony; (b) some of the inherent difficulties, both conceptual and practical, in conducting peer review of such physicians; (c) existing peer review programs within organized medicine; (d) a possible role for licensing boards in this arena; and (e) issues for further consideration and study. -

DISCUSSION

Physicians play a crucial role in the administration of justice and in ensuring that scientifically valid information becomes part of the judicial process. With that role comes the responsibility to testify truthfully and to provide objective and scientifically valid testimony. As stated in AMA’s Council on Ethical and Judicial Affairs (CEJA) Opinion E-9.07 (AMA Policy Compendium 1998) a physician as a citizen and as a professional with special training and experience has an ethical obligation to assist with the administration of justice. At the minimum, the physician must not become an advocate or a partisan in the legal proceeding, should be adequately prepared, and should testify honestly and truthfully. Additionally, the physician as a witness should inform the attorney for the party who calls the expert of all favorable and unfavorable information developed by the physician’s evaluation of the case and should not accept compensation that is contingent upon the outcome of the litigation.

Though many physicians who provide expert witness testimony do comply with these standards, others - seemingly motivated by financial gain - do not adhere to ethical or professional standards and, in fact, foster the introduction of "junk science" into the judicial system. This practice not only harms the judicial system but also reflects poorly on the medical profession itself. Though the admissibility and credibility of expert witness testimony clearly is the function of the judiciary, (1) maintaining the integrity and quality of the profession and physicians, including those who provide expert witness testimony, is well within the purview of both organized medicine and licensing boards.

With the exception of a few state medical boards and medical societies, licensing boards and medical or specialty organizations generally have not assumed a strong role over physician expert witnesses. This stems, in part, from the inherent difficulties, both conceptual and practical, in conducting peer review of expert witness testimony. Several, of those difficulties include assembling a true peer review panel, determining all of the relevant facts, defining the standard of acceptable testimony, imposing meaningful sanctions, and - most problematic - subjecting medical and specialty organizations and physicians conducting peer review to legal risk.

(I) Composition of a Peer Review Panel: When physicians testify as expert witnesses, they generally do so in an area of specialization. Conceivably, this area of specialization could be extremely narrow. The question arises: who are the "peers." to review the expert? If physicians are not specialized in the area over which they are to conduct review, they may have difficulty in appreciating the full nuances of the testimony that they are reviewing.

(2) Ascertainment of all Relevant Facts: Currently, physician peer review is most commonly practiced in the setting of a hospital or clinic. The physicians conducting the review are familiar with the procedures of the hospital or clinic. They know from the beginning which documents are relevant, how to interpret those documents, and which witnesses to call. Moreover, they can generally anticipate full cooperation in obtaining those documents and in procuring testimony from the witnesses.

Peer review of expert witness testimony, however, stands on a wholly different basis. The relevant facts are neither apparent nor readily available. For example, to review expert testimony critically, one would expect that it would be essential to have available a verbatim transcript of that testimony. However, for reasons of economy, many trials are conducted without a court reporter present and without a tape recording of the proceedings. In such situations, an exact transcription is impossible. Even when a court reporter has been present or a tape recording has been made of the proceedings, a transcript is not prepared unless someone requests it. Such requests are rare, and generally they are made only when the case is appealcd. The cost of preparation, which in most situations would have to be borne by the body conducting the peer review, may reach thousands of dollars. If a transcript is obtained, the vast majority of it is likely to be wholly irrelevant to the review proceeding. Unless all of the reviewers are to read the entire transcript, usually an extremely daunting and wasteful experience, someone must decide which portions are relevant.

Consider, further, the necessity of obtaining the trial exhibits at the peer review proceeding. In general, expert witness testimony will be based at least in part on an examination of such exhibits. These exhibits could consist of documents, possibly of a voluminous nature, or they could consist of physical objects. The offices of a court clerk may have only limited space available for the retention of trial exhibits. Thus, at the conclusion of a trial some or all of the exhibits may be returned to the parties who originally provided them to the court. They would not then be readily available to the peer review panel.

In addition, the review panel, if it is to perform its job properly, should have the ability to procure witnesses. Since the panel is not a branch of the government, it is unable to issue subpoenas to compel the testimony of persons who are unwilling to appear before it voluntarily. Furthermore, because the expert testimony is likely to involve a narrow and specialized subject, in many instances it can only be evaluated by a comparable expert. Finding such an expert can be a difficult process; retaining his services can be expensive.

However, extensive prehearing investigation may be appropriate in an adversary proceeding of substantial complexity, such as the contemplated review of expert testimony. A person skilled in such hearings, such as an attorney, may be needed to present and develop the facts. To maintain the fairness of the review process, it may well have to be formalized following rules of procedure, a process which could be expensive, time consuming, and burdensome.

Finally, we note that the AMA’s Council on Ethical and Judicial Affairs ("CEJA") is charged with ascertaining whether AMA members are fit to retain their membership. (AMA Bylaws, § 6.4023.) Many of these problems in factual development apply to any issue of fitness and not just to questions of expert testimony. CEJA is well aware of these problems. Therefore, by informal policy, CEJA does not adjudicate factual issues. Rather, it considers an appropriate sanction, such as probation or expulsion from AMA membership, only after a licensure board and/or court has rendered a disciplinary action against a member. The ground rule for any CEJA disciplinary proceeding is that factual determinations by the licensure board and/or court cannot be retried. The sole question that CEJA addresses is what should be done in light of those facts.

(3) Defining Standards of Acceptable Testimony: After the review panel has obtained the facts, it must evaluate them. It must determine whether the expert witness testimony has met some generally acceptable standard. The only such standard that seems remotely acceptable is that the testimony must have been true.

There is a fundamental difference in ascertaining the truth in law and in medicine. In medicine, truth is determined by empirical testing. Statistical significance is required to show that an association between an intervention and hypothesized result is not due to mere chance. The truth in law reflects relative justice, with the plaintiffs burden of proof in civil trials usually being a mere preponderance of the evidence or a more than 50 percent certainty. If that burden is met, then generally damages are awarded.

Expert witness testimony is presented in the course of a trial, rather than through a scientific journal. Judges have great familiarity with trial procedures and with the nuances of legal evidence, whereas physicians do not. The initial fact-finder, be it judge or jury, has the further advantage of ascertaining witness demeanor and the entire context of the lawsuit. Most importantly, the initial fact-finder is presented the evidence in an adversary proceeding, in which each side has an enormous motivation to present, in as persuasive a manner

as possible, all facts and arguments favorable to that side’s position. There may indeed be some circumstances in which a peer review panel would be better able to determine the truth than could the initial fact-finder. Those circumstances, however, are limited, and such limitations should be carefully considered before any peer review of expert witness testimony is undertaken.

Also, it is important to note that because medicine is both a science and an art with a dynamic body of knowledge, theories held by a minority of the medical community may not necessarily be "junk science" or constitute false testimony and instead could be an evolving scientific consensus. Under the law, courts have to allow for this sort of testimony, which may not meet the formerly applied "general acceptance" test first announced in 1923 in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The Board believes it is important to the legal process to allow minority opinion in as evidence. Certainly, physicians should not be subject to review merely for presenting minority opinion.

In summary, there may be a place for second-guessing the legal system and the experts who provide testimony to the judiciary. In the abstract, it is hard to lay out the full parameters for such a place, except to suggest that it should probably be small. The review would have to be limited to those matters that are more fact-based, e.g., misrepresentations of the expert’s credentials or the degree of scientifically valid support for the expert’s opinion, or violations of specific guidelines on expert witness testimony such as accepting payment for testimony based on the contingency of the outcome of a case.

(4) Imposition of Meaningful Sanctions: Peer review in the context of expert witness opinion would entail an evaluation by other physicians, after the testimony has been given, of whether that testimony meets objective standards of reasonableness. If that evaluation is to have meaning, the result of the review must be translated into some action with significant consequences. Therefore, after a medical society peer review panel makes a determination, it must then take action. If the person who was reviewed is found to have given untruthful or otherwise substandard expert witness testimony, then the medical society may expel the practitioner from membership. Such action would be reported to the National Practitioner Data Bank, but may not serve as a sufficient deterrent to prevent inappropriate testimony. Medical societies, of course, may not take action with respect to the physician’s license.

(5) Legal Risks: Peer review protections such as those found in the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. Section 11101, et seq., may not protect medical and specialty organizations against the risk of a lawsuit. Such statutes allow physicians to review their peers for the purpose of furthering quality health care without subjecting themselves to legal liability. Fraudulent testimony constitutes a threat to the quality of health care by possibly affecting the standard of care. However, it is questionable whether HCQIA and other peer review statutes would apply to expert witness peer review. 42 U.S.C. Section 11151(9) defines a "professional review action" as professional review of conduct "which. . . affects or could affect adversely the health or welfare of a patient or patients." A court might not deem expert testimony as constituting such conduct. This means that the medical and specialty organizations and the physicians who conduct peer review may be subject to a lawsuit based on such theories as defamation or unfair business practices. Physicians, however, could be indemnified under the insurance policies of the medical or specialty society for peer review activities, thereby minimizing their risk.

In summary, the obstacles to effective peer review of expert witness testimony are substantial. Relatively few organizations have devised a system to override them.

Some medical organizations have attempted to structure programs designed to curb fraudulent testimony. One such program is that of the American Association of Neurological Surgeons (AANS). The AANS has reviewed approximately 50 physician members over the last 15 years for possible unprofessional conduct in the provision of expert witness testimony. The review has resulted in censuring, suspending, and expelling approximately 10 members from the AANS and reporting those suspended or expelled to the National Practitioner Data Bank. The AANS process involves substantial due process, and—to date—has resulted in only one legal challenge.

In that case, Jacobs v. AANS (unpublished opinion), the court affirmed the dismissal of a complaint for injunctive relief brought against the AANS by a physician-member under investigation. The physician alleged that the AANS process was "fraught with First Amendment considerations and the chilling effect which a professional association may have against its members testifying in meritorious malpractice actions." The court was not persuaded by this argument but did not state any views on the substantive issues, in part, because the physician had not yet gone through the AANS process. The court reasoned that the completed proceedings would give the court a better picture of the problems that the review process could generate

The AANS program does not undertake the peer review of expert witness testimony per Se. The program is designed to review physician members against whom allegations of professional misconduct have been alleged. The complainant physician has a substantial burden to produce evidence of the misconduct. Then, the AANS legal counsel screens all complaints to ensure that the complaint is for a matter which the AANS can discipline a physician. Typically, the complaints that pass through this process involve violations of the AANS expert witness guidelines, which require, among other things, that the neurosurgeon who presents minority opinion simply indicate to the court that the opinion is not generally accepted by other neurosurgeons.

Less established programs include the recent efforts to discipline physicians for fraudulent testimony in both Florida and California. The Hillsborough County Medical Association in conjunction with the Florida Medical Association (FMA) has implemented a program to review physicians for possible deceit and fraud. As their program is designed, an Expert Witness Committee (EWC), comprised of both medical and surgical specialists, initially reviews physician complaints relative to the testimony of another physician. Procedurally, the EWC reviews all pertinent materials supplied by the complainant (previously deidentified) for deceit or fraud in statements or testimony regarding the applicable standard of care. If the EWC believes that a complaint may be valid, the EWC then formulates specific questions to be answered independently by three experts in the same specialty. Those experts review the case and submit written reports independently of one another and unaware of each other’s comments. If a consensus exists among the three specialists that there was indeed fraud and deceit, then the EWC makes a recommendation to FMA’s Council on Ethical and Judicial Affairs (or other professional association, if the physician is not an FMA member) for action, including disciplinary measures if warranted, and/or may forward the complaint to the Board of Medicine in Florida or another state in which the physician expert witness is licensed. The Board of Medicine then in turn may initiate proceedings with a full due process hearing.

To date, only five cases have been reviewed with one case resulting in an agreement by the physician to adhere to ethical standards. A similar program is now also under way in San Diego County, California. It is too early to speculate on the success of these programs. However, both programs have generated tremendous interest from proponents of expert witness reform.

Though medical and specialty societies do have a valid role in reviewing complaints, there are many obstacles for those in organized medicine who conduct peer review programs. Due to these difficulties, state and county medical organizations, as well as specialties, may wish to work with their state licensing boards to determine an effective disciplinary mechanism within their state law framework. The mechanism devised may well include a strong role for state and local medical societies and specialty specific programs, like that of the AANS. The licensing boards, generally, have the authority to discipline physician expert witnesses for fraud and deceit.

In order for the licensing boards to take action against a physician, the activity for which the physician is disciplined generally has to fall Within the statutorily defined scope of the practice of medicine. According to an AMA survey of medical practice acts, 29 states (see attached chart) define the practice of medicine with language such as "holding oneself out to the public as able to diagnose, treat, and cure disease." Given this broad language, in a majority of states board jurisdiction over physicians who provide expert witness testimony should not be difficult to invoke. In the remaining states that do have a more restrictive definition of the practice of medicine, many could invoke authority under other statutory provisions, for example, provisions which permit the board to discipline for unprofessional conduct or for engaging in fraud or deception relating or pertaining to the practice of medicine.

To date, few cases have challenged a licensing board’s authority to discipline physicians for fraudulent expert witness testimony. One such case is that of Missouri Board v. Levine, MD, 808 S.W. 2d 440 (Mo. App. 1991). There, the court concluded that the board lacked statutory authority to discipline the expert witness physician. The physician in question lied under oath on two occasions. Both falsehoods were related to his board examinations. He first testified that he bad passed the otolaryngology boards on his second attempt. In an unrelated trial he claimed that he bad passed on his fourth attempt when actually he had passed on his fifth attempt The Missouri Board of Registration for the Healing Arts filed a complaint against the physician based on the Missouri statute, Section 334.100, which stated that a complaint could be filed against a physician for "incompetency, misconduct; gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by this chapter." The Administrative Hearing Commission (ARC) dismissed the Board’s complaint. A trial court affirmed the ARC decision, and the Board then appealed this dismissal to the Missowi Court of Appeals. On appeal, the court upheld the dismissal and held that acting as a non-treating expert medical witness does not constitute the practice of medicine or the function or duty of a licensee. Part of the court’s rationale included reference to the state that listed 20 specific offenses for which the Board can issue a complaint against a physician, only three of which related directly to patient care. The other 17 included actions such as falsifying birth or death certificates. The court concluded that bad the legislature intended to include expert witness testimony within the purview of the statute, it would have so specifically provided.

In Joseph, MD v. D.C. Board of Medicine, 587 A.2d 1085 (D.C. App. 1991), the court upheld the state board’s authority to discipline physicians for fraudulent expert witness testimony. In this case, an emergency medicine physician, licensed in both Maryland and D.C., falsely testified that he was board-certified in thoracic surgery, that he ranked first in his medical school class, and that he was a member of certain professional societies. These falsehoods were brought to the attention of the Maryland Commission on Medical Discipline, which charged him with immoral conduct and making false reports or records in the practice of medicine. Without admitting the truth of the charges, the physician agreed to an order reprimanding him for his conduct. The AMA informed the D.C. Board of Medicine of the Maryland’s Commission’s decision, and the D.C. Board then instituted proceedings to impose reciprocal discipline based on the decision of a licensing authority in another jurisdiction. The Board held that the physician was subject to discipline because he willfully made a false report in the practice of medicine. In D.C. the practice of medicine is defined as "the application of scientific principles to prevent, diagnose, and treat physical and mental diseases, disorders, and conditions to safeguard the life and health of any woman and infant through pregnancy and parturition."

The Board concluded that it was the physician’s license that enabled him to testify as an expert and that expert witness activities constitute the practice of medicine. Contending that the Board misconstrued the definition and that the definition only pertained to patient care, the physician requested the court to vacate the Board’s decision. The court rejected the contention and affirmed the Board’s decision stating that such construction of the act would immunize physicians from making false statements in conjunction with medical evaluations performed for various public or private benefit programs, such as worker’s compensation, social security, and public and private pension systems.

The AMA’s policy states that expert witness testimony is the practice of medicine (Policy H-265.993, AMA Policy Compendium 1998). As a logical corollary, licensing boards should have the authority to discipline physicians who disobey ethical standards in giving such testimony.

The AMA has been contacted by several organizations either interested in peer review as an approach to expert witness reform or concerned with the potential chilling effect such peer review could have on legitimate expert witness testimony. The AMA will work with all interested parties to address the issues presented in this report

RECOMMENDATIONS

The Board of Trustees recommends that the following recommendations be adopted and that the remainder of this report be filed:

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1 In 1992, the AMA and numerous medical specialty societies participating in the AMA/Specialty Society Medical Liability Project (AMA/SSMLP) filed an amicur curiae brief in the U.S. Supreme Court case, Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 US. 579(1993). The AMA/SSMLP brief argued that the Federal Rules of Evidence require judges to make a determination that expert opinion offered by a party is based upon scientific knowledge, as shown by publication in peer-reviewed journals or by other reliable indicators of sound scientific methodologies. Since the Daubert decision, the AMA has tracked court decisions regarding scientific testimony and intervened when appropriate.

In 1997, the AMA filed an amicur curiae brief in a U.S. Supreme Court case involving scientific testimony, General Electric v. Joiner, 118 S. Ct. 512 (1997). The AMA's brief argued that to determine whether expert testimony is based on scientifically valid reasoning and methodology properly applied to the facts in issue, the trial court must examine the substance of the proposed testimony. If it is difficult for the judge to evaluate the evidence, the courts should be encouraged to exercise a power that they have, but seldom use: the ability to retain their own nonpartisan expert under Fed. R. of Evid. 706. In situations where there are partisan experts on either side, the court-appointed witness may be able to provide the objective view needed to help a jury reach a just decision.

In GE v. Joiner, the plaintiff, an electrician and a smoker who worked for years around electrical transformers, claimed he had developed lung cancer from exposure to PCBs used in the transformers. The plaintiff supported his case with two expert witnesses whose study of baby mice found a possible association between PCB exposure and cancer. The trial judge, applying his discretion, excluded the testimony of these two expert witnesses. In December 1997, the Supreme Court supported the judge's discretion and authority to exclude "expert testimony" that was irrelevant or presented scientifically invalid and questionable support of claims of injury. [Back to text]