Medicolegal Issues

An idea takes root: Hold those expert witnesses accountable

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Three cases show how regulation of physician–expert witnesses can be effective—or bite back


 

References

The author reports no financial relationships relevant to this article.

CASE #1 Suit filed after trauma during home delivery

The facts of the matter. Two parents, whose child was injured during a home delivery, sued the supervising nurse and their obstetrician. An expert witness for the plaintiffs testified that the defendant OB departed from the standard of care under the circumstances. The OB settled the case.

Later, the OB filed a complaint with ACOG’s grievance committee, in which he detailed factual misrepresentations that he claimed were made by the physician–expert witness during that expert’s testimony. (The defendant OB and the expert witness were both members of ACOG.)

The expert witness then sued the OB….

Physician–expert witnesses in medical malpractice litigation have come under increasing scrutiny in recent years. Specifically, many observers worry about “hired guns” who support the testimony of a plaintiff or a defendant in the face (and at the expense) of prevailing medical evidence. That concern is particularly salient in obstetrics, where the cause of a bad outcome that can lead to litigation—such as neurologic birth injury—is, in many cases, still unknown and where malpractice insurance coverage comes at high cost. Many lawsuits often attribute such injury to inappropriate intrapartum management, especially in times of fetal distress, even though leading pediatric neuroepidemiologists have long argued that many of these injuries may be the result of unavoidable antepartum events.1 On the other hand, improper testimony from expert witnesses for the defense may prevent legitimate cases from proceeding.

Medical societies build a place for complaints

Commentators have encouraged medical societies to create venues in which members can bring complaints about the appropriateness of expert witness testimony by other physicians.2 ACOG has established guidelines in its Code of Professional Ethics for members who serve as an expert witness:

…before offering testimony, the obstetrician–gynecologist must thoroughly review the medical facts of the case and all available relevant information…

and, then, during trial:

…the obstetrician–gynecologist testifying as an expert witness must have knowledge and experience about the range of the standard of care and the available scientific evidence for the condition in question during the relevant time and must respond accurately to questions about the range of the standard of care and the available scientific evidence.3

If a member of ACOG considers a fellow member to have violated one of these, or any other, provision of the code, and any litigation has ended, a complaint can be initiated before its grievance committee.

A federal court of appeals recently supported the ability of a professional society to discipline members who violate the society’s code of conduct,4 but such processes can still be subject to judicial review.

Here are three cases that describe professional societies’ role in the oversight of physician–expert witnesses. The cases also reveal how physicians use those review systems and how expert witnesses attempt to rebuff complaints made against them.

Who are the “expert” witnesses in OB malpractice cases?

A recent study revealed that a small cadre of physicians testified in nearly 90% of a national sample of neurologic birth injury cases. These witnesses tended to act consistently for one side. Frequent witnesses for the plaintiff had fewer markers of expertise than frequent witnesses for the defendant did.1

Reference

1. Kesselheim AS, Studdert DM. Characteristics of physicians who frequently act as expert witnesses in neurological birth injury litigation. Obstet Gynecol. 2006;108:273-279.

CASE #1 continued Birth trauma

The controversy. As described, the physician–expert witness sued the defendant OB after he filed a complaint with ACOG against that expert witness. The suit alleged:

  • interference with business contractshe claimed that ACOG’s grievance committee procedure impaired his ability to obtain more expert witness-related work
  • defamationthe complaint damaged his reputation before his peers in ACOG.
The expert witness suggested that it would have been more proper for the defendant OB to forward the complaint to the trial court in which the malpractice action took place or to his employer.

What was the outcome? A federal district court ruled for the defendant OB. It found that the OB’s statement to the ACOG grievance committee was not, for a number of reasons, defamatory:

  • The complaint constituted a long statement of the obstetrician’s opinions that was supported by a number of underlying facts
  • The complaint was submitted to the grievance committee as part of ACOG’s established procedure and was not communicated to other third parties; no apparent effort to intentionally harm the reputation of the expert witness could be inferred.

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