Medical Malpractice Expert Witnesses Part 2

In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

Both the legal and medical professions must contend with self-declared expert witnesses, who promote their availability to testify before courts in return for financial compensation. Reports of lucrative compensation for expert witnesses fueled concerns that some individuals were abusing the judicial process, and that the safeguards provided by Daubert and its offspring of legal cases were insufficient to protect defendants from overly zealous expert testimony that might mislead the court and jury, misstate the relevant standard of care, and impede justice.

Professional associations
In response to such concerns, a number of medical societies and professional associations, including the American Academy of Orthopaedic Surgeons, have developed programs to monitor expert witness testimony delivered by association members. These programs allow members to file complaints against fellow members who have testified adversely in a medical malpractice trial. A committee of association members typically reviews the suspect testimony and sanctions the testifying expert if the testimony is deemed inaccurate and misleading.

The proliferation of expert witness programs has provoked much controversy.

While courts have generally viewed the programs as assisting the judicial process, critics claim that the impact has a chilling effect on the willingness of physicians and surgeons to serve as expert witnesses for plaintiffs in malpractice cases. Furthermore, plaintiffs and their attorneys who have been the target of questionable testimony delivered by the defendant’s expert typically do not benefit from professional expert witness programs.

One reason why courts have upheld the legality of expert witness programs is that the professional associations which developed them are private and possess more latitude than government organization in restricting the freedom of speech of their members. However, this private status may create exposure to new forms of litigation, as a recent Minnesota court ruling suggests.

Excerpted from