There has been an ongoing and increasing concern that the unregulated activities of expert medical witnesses are degrading both the legal system and the practice of medicine.1,2
Suggested solutions have included 1) greater oversight by physicians such as a) peer review of expert testimony,3 b) local licensure for expert witnesses, c) mandatory membership in the medical society of the state of the trial; 2) greater oversight by attorneys, such as civil lawsuits; and 3) greater oversight by the judiciary (either through legislative mandate or common law opinion) such as a) court appointed experts as opposed to separate plaintiff/defense experts, b) changing the judicial standards to require a reasonable degree of medical certainty to meet a stricter standard, c) greater use of disciplinary sanctions and d) a stricter application of the standard commonly used in many state courts to determine if the opinion of an expert is legally valid, the Frye standard of generally accepted knowledge. Specific structural changes such as a public data bank of all expert medical opinions4 and removal of the economic incentives to testify have also been proposed.5
Despite frequent discussion of corrective measures to assure reliable expert witness testimony, most suggested solutions have not progressed beyond the proposal and discussion stage and few have actually been implemented.6,7 A primary reason for this failure to address the problem of unethical expert witnesses is that there has been no legitimate authority willing to perform the role of disciplinarian.
Recent news accounts have reported the disciplinary actions by a few medical boards against physicians for unprofessional testimony but the perspective of the boards in general has not been recently evaluated. In order to determine the current perspective of United States medical boards on expert testimony as the practice of medicine, a survey of the medical boards was conducted.
SURVEY
An e-mail survey was sent to the directors or chief counsel of the nation’s osteopathic and allopathic medical boards. When necessary, the survey was followed up with phone contact. The questions included:
Does the board consider expert testimony to be the practice of medicine?
If yes, from where does the board derive the authority (nonspecific interpretation of “unprofessional conduct” or a specific legislative mandate)?
Has the board evaluated and/or sanctioned any provider for expert testimony during the past 5 years?
From whom has the board received complaints regarding expert testimony?
RESULTS
The survey generated varied response and reflected strongly held positions on the issue. Of the 70 medical boards, 37 (53 percent) provided answers to the survey while one expressed a desire not to participate and did not respond. Of the responding boards, 11 (30 percent) view expert testimony to be the practice of medicine and three (8 percent) are currently considering the issue and have not taken a position at the time of the survey.
The authority to define expert testimony as the practice of medicine could be either based on direct statutory definition or on an interpretation of “unprofessional conduct.” None of the responding states had specific statutory authority but rather based their authority on the concept of unethical testimony as “unprofessional conduct.” Three boards reported having disciplined an expert witness.
Many boards receive complaints about expert testimony, including boards that do not consider testimony as the practice of medicine. Many boards reported the majority of the complaints came from other licensed physicians. Some boards reported both attorneys and lay public as sources of complaints about experts.
Previous Board Attitude
In 1997, Eitel et al published the findings of a similar survey of only allopathic medical boards.8 The results, part of a larger review of physician attitudes towards expert witnesses, were similar to the results of this current survey, but show increasing acceptance of the premise that expert testimony is the practice of medicine and a medical board should fulfill the role of oversight and discipline.
In both surveys, more than 30 percent did not respond. It was not possible to determine if the non-responding boards were the same in both surveys. The number of boards that consider testimony to be the practice of medicine was similar (8 – 11).
Review of Board Experience with Expert Discipline
While a significant number of boards consider expert testimony to be subject to their review, few have disciplined physicians for unethical expert testimony.
In 1991, the Missouri State Board of Registration for Healing Arts sought review of a decision by the Administrative Hearing Commission that, even if the physician had given false testimony under oath while acting as a medical expert, giving of expert testimony by a nontreating physician was not considered to be the practice of medicine. The physician had falsely claimed he had passed the specialty boards on his second attempt when actually had required five. The Court of Appeals held that giving expert testimony was not “obtaining fees or other compensation by fraud, deception or misrepresentation” within the meaning of the statute allowing the board to bring disciplinary action against physicians. Because the physician did not “diagnose or treat the sick ... acting as a nontreating expert medical witness was not the practice of medicine.”9
However, that same year, the Court of Appeals for the District of Columbia held the District of Columbia Board of Medicine could find that false testimony given by a physician acting as an expert in a medical malpractice action constituted a false report in the practice of medicine.10 The physician had falsely testified he was a board certified thoracic surgeon and he had ranked first in his medical school class. In addressing the issue of whether expert testimony was the practice of medicine, the court held that examining X-rays and medical records were acts of “investigation and analysis of the nature of a patient’s condition.”
In 2002 the North Carolina Medical Board revoked the license of Dr. Gary Luftgarten, a Florida neurosurgeon, for unprofessional conduct during expert witness testimony in a medical malpractice suit in North Carolina. In 1998, Dr. Luftgarten testified for the plaintiff in a malpractice trial in North Carolina. The North Carolina board found Dr. Luftgarten repeatedly made factual assertions without an evidentiary or good-faith basis and misrepresented the applicable standard of care. The board determined this was unprofessional conduct and revoked his medical license (the revocation is currently stayed pending appeal).
Other professional boards also have disciplined licensees. The Examining Board of Psychology of the State of Washington disciplined Edward Deatherage, Ph.D., for bias and misleading testimony based upon allegations he did not verify the patients in a lawsuit by testing or interviewing prior to testifying in court. The board concluded that such conduct constituted moral turpitude relating to the practice of psychiatry. The Supreme Court of the State of Washington upheld the action of the board. It held that while the judicial immunity accorded witnesses in judicial proceedings prevented civil action against a witness, it did not include immunity from disciplinary actions based on the evaluations.11
DISCUSSION
Does Testifying as an Expert Constitute the Practice of Medicine?
Although state statutes, regulations and judicial opinions precisely determine what constitutes the practice of medicine, some general conclusions are possible based on facts and terms common to most states’ regulatory authorities and activities. Although there are common foundations and striking similarities between expert testimony and the practice of medicine, they are not the same activity.
An expert witness forms an opinion on the application of scientific principles in diagnosing and treating physical diseases. The expert uses knowledge unique to a physician to analyze and “diagnose” the propriety of another licensed practitioner’s actions. Such application of professional knowledge is similar to that of a second opinion. It is similar to filing a medical insurance report. Testifying is part of the sphere of actions associated with the practice of medicine. It is the license to practice that enables the role of medical expert witness. As only practitioners can testify as to the standard of care and causation, expert testimony can be viewed, by its very nature, to be the practice of medicine. Courts might be inclined to defer to a board when it defines unethical testimony.12 The meaning of “the practice of medicine” as the terms are used in statutes granting authority to boards includes the type of agency expertise and informed actions that courts often acknowledge as valid government agency actions.
However, legitimate arguments have been made that expert testimony is not the practice of medicine. These positions are frequently based on the perspective that testimony is not patient care, as it is an opinion based only on record review and without patient contact. Although it may involve diagnosis, it does not involve the actual treatment of a patient. At the time of the expert analysis the “subject” may not even be alive. Testifying is not part of a physician’s “function” or “duty.” It is not a moral or legal obligation, nor even an act expected of a licensed physician.
Even if the Testimony Constitutes the Practice of Medicine, Are Boards the Appropriate Forum for Evaluation and Discipline of Expert Testimony? Licensing boards have a long history of unbiased evaluation of medical practice. A licensing board has the experience and the structure with evaluations and can guarantee due process. It would be a natural extension of a board’s current activities for a board to assume the role of regulation of expert testimony.
Outside forces have been calling for boards to be more active in the traditional role of evaluation and discipline of actual patient care. Assuming new responsibilities such as regulation of expert witness testimony may consume scarce resources and lessen a board’s ability to perform its primary functions. Determining that expert witness testimony is unethical is difficult, resource intensive, time consuming and often not definitive.
Although the survey found that the foundation of current board activity regarding the evaluation and discipline of expert testimony is based on an interpretation of current nonspecific regulations, a legislative or public mandate to perform this function would provide clear direction for boards. Such specific authority would also help protect against retaliatory civil action by those who have been disciplined. However, as noted below, legislatures have been slow to address the issue of expert witness regulation.
A board should consider if its assumption of the role of evaluation and discipline of an expert will undermine the public’s confidence in the board as an unbiased, independent protector of health care. The medical profession has been accused of impeding appropriate civil action in the past.13 Boards have been accused of not meeting the needs of the public due to acquiescence to the interests of the practitioners.14 Involvement in such a controversial arena may result in accusations of bias and decrease public confidence in the board. To prevent such a perception of bias, a board might consider soliciting input from a plaintiff bar or trial lawyer associations.
The Judicial Role and Void as Disciplinarian
Outside of its role as gatekeeper of the courtroom,15 the judicial system has not assumed the role of evaluation and discipline of the unethical expert witness. The expert witness is a vital but only a small part of the tort process. Although judges do evaluate experts for suitability in the judicial process, suitability of an expert witness by judicial procedural or evidentiary standards does not equate with suitability for the pursuit of a just and equitable outcome. Nor is judicial suitability entirely consistent with the purposes of society as a whole. Judges are experts in the field of law. They have no knowledge basis for questioning the testimony of an expert and must rely on other experts. Judges need help in screening experts.16
The judicial system is based on a foundational belief that truth is made evident through the adversarial system, and the adversary can expose and therefore render impotent the unethical expert. However, through its faith in and support of the adversarial foundation, the judicial system may protect the unethical witness. Most jurisdictions provide immunity to expert witnesses,17 and such immunity often is absolute. Although some jurisdictions do specifically exempt fraudulent and grossly negligent testimony from immunity, the standards required to establish fraud or negligence are high and difficult to prove. Historically, this has had the purpose of encouraging participation in the legal system.18 There is no reason to believe this immunity will be modified to lessen the impact of the unethical expert witness on the health care system. Therefore, many believe that the legal system is either incapable or hesitant to respond to the continued problem of unethical expert witnesses.
The Legislative Role and Void
While many states have considered or enacted tort reforms, none have attempted legislative regulation and discipline of the unethical expert witness. There has been no analysis on why legislatures have not addressed the issue. However, it is possible that either lack of awareness, influence of powerful lobbies or even desires to avoid a politically sensitive issue are responsible for the legislative inaction.
A statute exists in at least one state that prohibits the use of a false permit, license or diploma and may be interpreted to prevent misrepresentation of credentials.19 The implementation and effectiveness of this statute on unethical expert testimony has not been documented.
The Medical Professional Void and Recent Non-Board Response
Expert witnesses were shunned early in the medical profession’s history; and the modern medical profession has, until recently, avoided the role of disciplinary oversight of the unethical medical witness. During the past few years, perhaps in response to the failure of the legal system to discipline unethical expert witnesses and the growing impact of such unethical witnesses on the ability to care for the public, the medical profession has begun to fill the role of evaluation and discipline.
The American Medical Association (AMA) has adopted the position that expert testimony in a legal proceeding is the practice of medicine. The AMA has further encouraged state licensing boards to develop effective disciplinary measures for physicians who provide fraudulent testimony.20 Numerous professional organizations have adopted a similar position and developed guidelines for expert testimony.21,22 One organization, the American Association of Neurological Surgeons (AANS), has evaluated about 50 members for improper testimony and, on 10 occasions has, disciplined those members who have given testimony the AANS determined to be unprofessional or unethical. One sanctioned physician expert brought a lawsuit against the AANS. However, the authority of this organization to discipline unprofessional testimony has withstood the accusation of tortuous interference from a disciplined surgeon. The 7th Circuit U.S. Court of Appeals upheld the authority of the organization to discipline its members for unethical testimony.23 Judge Posner said, “This kind of professional self-regulation rather furthers than impedes the cause of justice.”
However, professional organizations are voluntary organizations and therefore may be unable to effectively discipline wayward experts who do not belong to a professional organization. If expert testimony is truly part of the practice of medicine, then the regulation and oversight of expert testimony will need to be performed by the medical licensing boards.
CONCLUSION
Despite increasing concern about the impact of unethical expert testimony and the failure to address the issue, no legitimate authority has assumed the role of evaluation and discipline. A minority of medical licensing boards consider expert testimony to be the practice of medicine and therefore under its jurisdiction for evaluation and discipline. The number has slightly increased since the last survey but the majority of boards have not expanded their oversight activities to this area.
The expertise at administrative evaluation of the practice of medicine and the acknowledged fairness of a state licensing board makes it a natural authority to perform these functions. The need for public or legislative mandate remains unanswered and the allocation of adequate resources remains unfulfilled.
The perceived failure of the judicial and legislative systems to resolve the problem and the assumption of a role by professional groups such as the AASN may stimulate greater involvement by state licensing boards in the evaluation and discipline of expert witnesses.
Acknowledgments
The author wishes to acknowledge and thank Dr. Robert Yoho for advice regarding the issues of the manuscript.
REFERENCES
- 1.↵EitelDouglas R., HegemanRobert J., EvansEric R. Medicine on Trial. Physicians’ Attitudes about Expert Witnesses. 19 J. Legal Med. 345, ( 1997).
- 2.
- 3.↵Fadjo & Bucciarelli Peer Review of the Expert Witness: An Opportunity to Improve our Medical Liability System, 10 J. Child Neurology 255 ( 1996).
- 4.↵FisherCharles W., DombrowskiMichael, JaszcakStanislaw, Cook,Cheryl SokolRobert The Expert Witness: Real Issues and Suggestions. 172 Am J Obstet Gynecol 1792, ( 1995).
- 5.↵WennerWilliam J.Jr., Unreliable Medical Experts. 111 Pediatrics 711, ( 2003).
- 6.↵Fisher.
- 7.↵McAbeeGary N. , Improper Expert Medical Testimony. Existing and Proposed Mechanisms of Oversight. 19 J. Legal Med. 257 ( 1998).
- 8.↵Eitel.
- 9.↵Missouri Board of Registration for the Healing Arts v. Laurence A. Levine, M.D., 808 S.W.2d 440 (Mo. App. W.D. 1991).
- 10.↵William L. Joseph, M.D. v. District of Columbia Board of Medicine. 587 A.2d 1085. (1991).
- 11.↵Deatherage v. Examining Board of Psychology, 948 P.2d 828 (Wash. 1997).
- 12.↵Joseph v. D.C. Board of Medicine. 1088.
- 13.↵Allen DeVilleKenneth, Medical Malpractice in Nineteenth Century America. New York University Press, 205. ( 1990).
- 14.↵Damon Adams, Medical Boards Feel Pressure, Get Tougher. American Medical News. Available at http:www.ama-assn.org/amednews/2003/04/21/pr/20421.
- 15.↵Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
- 16.↵Donald C. Austin v. American Association of Neurological Surgeons. 253 F.3d 967 (2001).
- 17.↵Michael A. Trimmer, Huhta v. State Board of Medicine. 8 Widener J. Pub. L. 843, (1999).
- 18.↵Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986).
- 19.↵Nev. Rev. Stat. Ann § 205.420 (West 2004).
- 20.↵American Medical Association. Expert Witness Testimony H-265.992. (2003).
- 21.↵Committee on Medical Liability American Academy of Pediatrics. Guidelines for Expert Witness Testimony in Medical Malpractice Litigation. 109 Pediatrics 974 ( 2002).
- 22.↵American Society of Anesthesiologists. Guidelines for Expert Witness Qualifications and Testimony. (Approved by House of Delegates on 10/14/87, and amended 10/23/1990) http://anestit.unipa.it/mirror/asa2/Standards/07.html.
- 23.↵Austin v. AANS.
