1. Medical Malpractice Testimony - Unmonitored

The Statement of the Problem

Our medical and legal journals are regularly presenting articles dealing with the "malpractice crisis".  Assertions of "frivolous lawsuits" and "cover-up" of physicians guilty of malpractice abound.  Over the past few years, there has been increasing discussion regarding methods of review and sanction procedures for medical specialty experts for alleged improper testimony as to the standards of care for their particular specialty.^{1, 2} There have been proposals for medical courts where special judges review and decide the issues of malpractice, after hearing plaintiff and defendant expert testimony. This process eliminates jury participation since proponents of this approach believe that juries selected from the usual jury pool are not appropriately educated to be able to discern the nuances of medical issues related to medical malpractice.  There is also criticism of "runaway jury" excessive monetary awards although there are no peer-reviewed studies that confirm any truth to this assertion.  In the trial court circumstance, the judge selects and relies upon expert physicians to provide the medical standards education.  Such "court appointed" experts are selected according to their access to the courts and are not evaluated as to any bias for plaintiff or defendant positions.  Representatives from the plaintiff’s bar often profess reliance on jury trials and selection of their own experts for malpractice cases rather than these appointees, suggesting a belief that a bias against the plaintiff exists in such circumstances and that judges are less likely to appoint expert medical witnesses who have a history of review and support of plaintiff issues.

There have been aggressive attempts by some specialty organizations to discipline members for supposed erroneous misrepresentation of the standards of care in malpractice cases.¹  The Journal of American College of Legal Medicine includes many recent articles dealing with various facets of this issue.^{1, 2}

Since most of the attempts to control and discipline the expert medical witness has come from specialty organizations associated with the specialty of the testifying physician in question, there is an impression gleaned through anecdotal reports, that most of the reviews of expert opinion by these organizations have developed against those who choose to serve as expert medical witnesses for the plaintiff.  Indeed, there are medical experts who regularly review and testify for the defense who privately state that they do not review for the plaintiff in any circumstance. Each specialty also has its cadre of experts for the plaintiff who rarely appear in a case as the defendant’s expert. Since the expert medical witness is in fact an agent of the court, whose purpose is to clarify for the "triers of fact", the jury, the pertinent medical standards and breaches in a case without regard for whether the information favors plaintiff or defendant, the refusal to review and testify for either side in a case depending solely upon the facts of the case cannot be justified and demonstrates a potential for bias by experts taking such positions.

The attempts to control and discipline the medical expert deemed to be "irresponsible" in the opinion of his medical specialty has resulted in the formation of special committees within many national medical specialty organizations to review and sanction accused experts.  Review of available evaluations in the public domain reveal that the physician under such review has, in most cases, testified for the plaintiff.  Specific queries are now taking place with the specialty organizations, but to date, we have not been able to confirm any specialty organization review of any expert testifying for the defense.