Americans pay for unethical medical expert witnesses

10/06/04

Panel addresses concerns at American Society of Plastic Surgeons annual scientific meeting

PHILADELPHIA – With medical liability insurance premiums skyrocketing, the role of a physician expert witness and how they can contribute to increasing malpractice costs is certainly controversial. Love them or hate them, expert witnesses are a necessary component of the United States' legal system. Untruthful testimony, however, can punish good doctors and push the medical community's overall medical liability insurance premiums up, which forces many physicians to modify their practice and pass costs on to their patients, according to a panel held today at the American Society of Plastic Surgeons (ASPS) Plastic Surgery 2004 conference in Philadelphia.

"No doubt there are people who have had surgery, and malpractice has been committed," said Paul Weiss, MD, former chair of the ASPS Task Force on Expert Witness Testimony and panel participant. "ASPS believes those patients deserve to be protected and have their day in court. However, we also believe that physicians who offer untruthful and misleading testimony that does not match the industry's standard of care to support a malpractice case should be culled out of the system for everyone's benefit."

In response to this growing dilemma, ASPS created a document that calls for an expert witness to affirm, among other things, that the witness has relevant expertise to the procedure in question and will provide truthful and impartial testimony based on the standard of care in the community. ASPS encourages members to sign this document before testifying and present it to the attorney representing the party for whom they intend to testify. Witnesses who have signed the affirmation can use it to bolster their qualifications on direct examination. Conversely, witnesses who choose not to sign it can be cross-examined about their failure to do so.

While some medical expert witnesses are purposefully deceitful, many simply do not have the in-depth and wide knowledge base to appropriately comment on the procedure in the suit. First, plastic surgeons should not testify that a fellow surgeon's conduct was outside acceptable standards simply because the plastic surgeon experienced a result the testifying physician had never experienced. Second, ASPS members serving as an expert witness should demonstrate a causal relationship between an alleged substandard outcome and the conduct of the defending physician. Third, members should not testify that a less-than-desirable outcome is malpractice, when in fact the outcome is identified as acceptable in clinical literature.

"Untruthful and uninformed testimony hurts everyone – from the medical professional on trial to patients across the country. Expensive trial costs and over-the-top awards, perpetuated by false or misleading testimony, force liability insurance premiums to rise," said Phillip Haeck, MD, former chair of the ASPS Judicial Committee and panel moderator. "In the end, physicians are moving their practices to other states, changing their practices so they don't take higher risk cases or passing on the costs directly to their patients. Ultimately, it limits Americans' access to quality healthcare. It's a no-win situation for everyone."

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Last reviewed: By John M. Grohol, Psy.D. on 21 Feb 2009
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