6. Anesthesiologists, the state, and society
44. The ethics of expert testimony
Louise B. Andrew
Dr. X is contacted by an attorney in a plaintiff’s firm with which he has worked frequently on prior cases. The attorney requests that he provide expert testimony in a malpractice case involving a patient who died intraoperatively following pacemaker placement by an anesthesiologist during cardiac surgery. Although Dr. X is well known and respected in the specialty for his expertise in regional anesthesia and has written several respected textbooks, he is not board certified in anesthesiology. He does not practice cardiac anesthesia. He has never placed a pacemaker himself. Despite misgivings, he agrees to review the case.
After chart review, Dr. X identifies no obvious breach in the standard of care by the defendant anesthesiologist, and informs the attorney. However, after he has read selected reference materials provided by the attorney, and following a discussion during which a significant fee is discussed, he decides that he might testify that the death resulted from improper pacemaker placement.
Because judges and juries generally are not knowledgeable about medicine, the integrity and credibility of the litigation process in the United States and elsewhere depends on expert witnesses who help them to understand technicalities and decide complex cases by articulating the applicable standard of care and rendering an opinion as to whether or not it was met. To protect patients and physicians and uphold the highest standards of medical care, it is morally and ethically appropriate for anesthesiologists with sufficient expertise to testify in medical malpractice claims.
Qualifications of an expert witness
The American Society of Anesthesiologists (ASA) has established guidelines regarding expert witness testimony to guide members in providing such service.1 The guidelines state that to qualify to act in this capacity,
“(1) The physician (expert witness) should have a current, valid and unrestricted license to practice medicine,
(2) The physician should be board certified in anesthesiology or hold an equivalent specialist qualification, and
(3) The physician should have been actively involved in the clinical practice of anesthesiology at the time of the event.”1
The legal qualification of a witness as an expert in court is determined by the judge on a case-by-case basis. Judges have broad discretion for such determinations, but for practical purposes are usually limited to consideration of those “experts” brought to them by the parties to the case.
Expertise in the subject matter forming the basis of any legal case is the sine qua non of an ethical expert witness. Such expertise is established on the basis of: (1) knowledge of the field; and (2) relevant clinical experience. In medicine, board preparation and current certification are the best indicators of knowledge of a specialty. Relevant experience is established by a period of active clinical practice beyond training, as well as practice during the time frame of the incident in question. An ethical expert witness should be actively practicing within his/her field in order to be aware of the current standard of care. Holding an active and unrestricted license to practice medicine constitutes a bare minimum qualification for expert testimony.a
ASA guidelines for expert witness testimony
The ASA ethical guidelines include six explicit points:(1) “The physician’s review of the medical facts should be truthful, thorough and impartial and should not exclude any relevant information to create a view favoring either the plaintiff or the defendant.”1
As an expert witness, the anesthesiologist has an ethical responsibility to be truthful, thorough, and impartial when evaluating a case for adherence to the standard of care. An expert witness’ primaryresponsibility must always be to discernment of the truth2. Truthfulness is a fairly self evident concept; but in expert testimony based on case analysis, truthfulness carries several other ethical obligations. One obligation is that the analysis must be thorough, including all sources of possible information, even if the information initially provided is insufficient or might be misleading in light of further relevant details. Before forming any opinion, the physician must familiarize him or herself with all aspects of the case. Every relevant medical record must be accessed, as well as imaging or other ancillary studies if potentially germane to the medical issues. The witness has an obligation to review these materials even if they are difficult to obtain and are not volunteered by the attorney requesting expert consultation. This is important – an unscrupulous or incompetent attorney may provide selective information favoring the side for which he or she is an advocate. Failure to review all potentially relevant materials can render any expert susceptible to unwitting partiality, just as selective exclusion of mitigating data, facts, or circumstances may render an expert opinion unethical for partiality.
“... the ultimate test for accuracy and impartiality is a willingness to prepare testimony that could be presented unchanged for use by either the plaintiff or defendant.”1
This is a valid and useful concept, though it could prove difficult to apply. In some instances, two blinded experts could examine the same set of facts and circumstances and ethically render opinions that are opposite in their conclusions, thus rendering either opinion useful to one party and damning for the other.
(2) “The physician’s testimony should reflect an evaluation of performance in light of generally accepted standards, reflected in relevant literature, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls outside accepted medical practice.”1
The expert witness must review time-appropriate literature to substantiate the existing standard, or to identify alternative acceptable approaches to care. Testimony should reflect knowledge of, and comparison with, applicable and generally accepted standards of care. Though not explicit in the ASA guidelines, the expert must be aware of and apply the standard of care that existed at the time of the incident giving rise to the claim, and should also take into consideration regional and even institution-specific and resource based variations in practice.
The legal principle of the medical “standard of care” is usually defined by case law or statute for each jurisdiction and entails some version of “that degree of care which would be rendered by a reasonably competent physician practicing under the same or similar circumstances.”3 In their zeal for advocacy, attorneys do not always clearly define this concept for their experts. Even the pivotal concept of “standard of care” is not well understood by many who agree to serve as expert witnesses, though most believe that they both understand it and can accurately describe the specific standard applicable in a given case. Legal scholars believe that medical expert testimony regarding what constitutes the standard of care is more apt to reflect what experts think that they and their immediate colleagues would do rather than what most physicians actually do.4 Research suggests medical expert witnesses share with all of us the tendency to have selectively optimistic recall of how well they themselves typically handle clinical situations.5 This means that well intended experts will tend to overestimate the applicable standard of care. As a fundamental principle, however, it is important to understand that the legal standard requires only that the physician acted reasonably under the circumstances.
An ethical witness must be careful in differentiating between a widely utilized standard of care, and ideal care that might be provided by the most astute clinician practicing under optimum circumstances. Application of an “ideal” standard (sometimes called “counsel of perfection”) may be a particular hazard for clinicians whose only practice experience has been in a tertiary care facility, such as a medical school faculty, or newly graduated residents.
It is easier to define what the standard is not, than what it is. The legally required standard of care is not perfect care, or care that creates a perfect result. Although such care would presumably meet the standard, it would in many if not most instances, exceed the actual standard required under the law. The standard of care is also not necessarily what “I do in my practice, which I assume others also do.” It is also not necessarily what “I was taught to do in training,” what the textbooks recommend, or even what clinical policies/guidelines say it is (although these may be good indicators of things which peers believe to represent optimal care, best practices, or recommended practices according to the best available evidence). Each of these sources can provide information as to what constitutes good or excellent care for a given condition, but they do not define the legal standard of care.
An expert must be able to help the jury to understand the difference between the type of care that is most commonly rendered for a particular condition, and an equally acceptable method (the “two schools of thought” or “respectable minority” test) which is not often rendered, but is also medically valid or theoretically sound. The expert must also be able to assess and to clearly delineate the difference between reasonably competent care, and care which would be considered substandard by an average practitioner under any circumstances.
(3) “The physician should make a clear distinction between medical malpractice and adverse outcomes not necessarily related to negligent practice.”
(4) “The physician should make every effort to assess the relationship of the alleged substandard practice to the patient’s outcome. Deviation from a practice standard is not always causally related to a poor outcome.”1
In a typical malpractice case, one of the most important roles of a medical expert witness is to help a judge and jury to understand the difference between maloccurrence (an adverse patient experience or outcome), and malpractice (an adverse experience or outcome that more likely than not resulted from substandard care or negligence). Causation is defined as being the “proximate cause,” or that which brings about injury as a direct result, and without which the injury would not have taken place. An expert may not be asked to render an opinion as to “causation,”b or may be asked to render an opinion only as to causation of an adverse outcome by negligence or substandard care. If asked to render an opinion as to causation, an ethical expert must carefully consider whether the adverse outcome could have occurred in the absence of any substandard care, and be able to explain why this is or is not likely in this particular case. In addition to a thorough review of all relevant case materials for possible confounding influences, such an opinion also should be informed by personal experience, literature, and an assessment of probabilities. An expert who cannot reach a conclusion regarding the relationship of an adverse outcome to the degree of care that was provided, should ethically decline to testify as to causation.
Representation of one’s personal opinion as absolute truth is misleading and unethical. Personal opinion may be proffered during expert testimony, but should be clearly designated as such. The ethical witness will recognize that with respect to medical management, in most cases differences of opinion between competent medical practitioners will exist. The ethical expert will acknowledge that the ideal course of events is almost always clearer when viewed retrospectively in light of a less than optimal outcome. Because it is impossible to avoid knowledge of the ultimate outcome of a case, an ethical expert must be vigilant in analyzing the facts of a case as if the outcome is unknown, and limit standard of care opinion testimony to the adequacy of care provided.
(5) “The physician’s fee for expert testimony should relate to the time spent and in no circumstances should be contingent upon the outcome of the claim.”1
Financial remuneration must never be the key motivation behind expert witness work. Compensation for time expended in analysis or testimony should be commensurate with compensation that would be earned during the same amount of time devoted to medical practice, and not indexed to the “market rate” for expert testimony.b
For a physician to earn more through work as an expert witness than as a practicing physician is morally questionable if not unethical. Expert testimony by physicians can be useful to juries, the profession, and society, but exorbitant fees charged for such review and testimony will predictably increase the cost of malpractice defense, and therefore threaten liability insurance premiums and availability, and ultimately the availability and affordability of healthcare.
Under no circumstances is it appropriate for an expert’s professional remuneration to be contingent on the outcome of a case. All medical professional ethics codes and legal codes of professional responsibility prohibit this practice, because it immediately casts doubt on the objectivity of an expert witness. In general, an ethical expert would be wise to establish a fee schedule at the beginning of any case and require payment at the time service is commenced – not at the conclusion of the case – to avoid even the appearance of contingency billing and attendant bias. Experts must also acknowledge that there is an unspoken inherent contingency in every consultation for an attorney, because repeat engagement is less likely when an expert is unable to provide the opinion or the testimony sought by that attorney.6
(6) “The physician should be willing to submit such testimony for peer review.”1
Ideally, medical expert testimony would be routinely peer reviewed to ensure it meets the ethical standards of medical professional societies. In some of the US expert testimony has been subject to Medical Board peer review and disciplinary action by under the authority of the state Medical Practice Act. A few states are moving towards requiring a limited state license in order to testify in the state. Although several states have issued discipline based on falsification of credentials by those acting as medical experts, none has yet successfully disciplined a medical expert for giving unethical testimony. Many professional societies, including the American Society of Anesthesiology have followed the lead of the American Association of Neurological Surgeons in reviewing the testimony of members acting as expert witnesses upon complaint by another member.7
The US Supreme Court has upheld the right of a professional society to discipline a member for inappropriate expert testimony in the Austin case.6 The American Association of Neurological Surgeons suspended a member for giving improper expert witness testimony at a medical malpractice trial. Judge Posner speaking for the 7th court of appeals applauded the association for increasing the accountability of experts from its ranks. This precedent was an important victory for those professional societies that include ethics review of expert witness testimony in their policies and disciplinary procedures. A member who believes that an expert has acted unethically while giving testimony has standing to request a review of the testimony by their specialty society (if the witness is a member). Not all societies, however, have a mechanism in place to perform this function, and ethics reviews are not without attendant costs and liability to the professional society.
Medical association sanctions in the event of proven false or unethical testimony are generally limited to those affecting the expert’s membership in that society. Unfortunately, not all “experts” belong to medical societies, or are even eligible for membership. Further, if the expert is from a different specialty than that of the defendant, the expert’s specialty society has no obligation to respond to a nonmember complainant from another specialty. Parenthetically, there is an inherent selection bias in such reviews, rightfully noted by plaintiff’s bar, that members are extremely unlikely to report questionable testimony on behalf of a defense witness.
Acting as an expert witness has become a second career for some physicians. Medical legal case reports are replete with testimony by “hired guns” who earn a significant portion or even the majority of their income from testifying in malpractice cases. Some such physicians have not practiced for years or may have restricted their practice to a very small subspecialty area, then falsify their current practice experience, or practice just enough to maintain their medical licenses. Some so-called “experts” have been barred by judges from acting as expert witnesses in some states, yet continue to do so in others. Some witnesses use past credentials or academic accomplishments as evidence of current expertise.
Although some physicians believe themselves to be eminently qualified to testify after retirement from clinical practice because of their knowledge of the basic precepts of the specialty and the breadth of their experience, the fact is, that what the courts need – education about currently prevailing standards of clinical practice – cannot honestly be provided by a person who no longer practices clinically. An ethical expert witness should be actively practicing within his field at the time of the incident involved in a claim in order to be aware of the actual applicable standard of care in effect as of that date. A retired physician might ethically be able to render opinion about causation, as opposed to the prevailing standard of care.
Some witnesses testify almost exclusively for either the defense or the plaintiff. This practice in itself calls into question the objectivity of the witness. Federal court rules now require that an expert keep detailed records about parties on whose behalf they have testified for the purpose of exposing such potential sources of bias.
In the introductory case, several obvious potential ethical violations are apparent. Dr. X does not meet the ASA’s minimal qualification for expert witness testimony of board certification or preparation in the specialty. Although he still practices part time, it is in a subspecialty area that is far removed from the subspecialty that is the basis of the case. It is difficult to assess whether he could even know what additional data could be relevant in determining the standard of care in the case, since he may have relied upon selected references provided by the attorney to form even a basic understanding of this area of subspecialization. It could be argued that he may have allowed financial considerations to influence his willingness to provide a favorable opinion/testimony.
Dr. X’s testimony was submitted to his professional association for peer review, and he was judged to have breached the ethical guidelines and thus was disciplined by the society.
• Those who take part in expert medical testimony should make every attempt to give fully informed, truthful, non-biased opinion about the care that the patient received and the relationship between that care and the outcome of the case.
• The opinion of the expert witness should never be influenced by the outcome of the case, the party that retains the expert, or the remuneration which is offered.
• An expert should be willing for their testimony to be subjected to peer review when requested.
• The hallmark of the ethical expert witness is conscientious, objective, thorough, truthful, and impartial evaluation and testimony, signifying an unswerving dedication to the integrity of the process.
Notes a Yet surprisingly, in a number of states there is no legal requirement that an expert witness testifying about the standard of care of physicians be qualified as a physician.
b Defined by Black’s law dictionary as the fact of being the “proximate cause”, or “that which produces injury as a direct result, and without which the result would not have occurred”.
c Which is increasing dramatically in recent years, and can reportedly reach $600–1000 per hour in some specialties. Baldas, “Nonexperts taking the Stand”, National Law Journal March 21, 2005http://www.law.com/jsp/article.jsp?id=1111572309683 accessed May 19, 2009.
1* Guideline for Expert Witness Qualifications and Testimony. (2008). American Society of Anesthesiologistst. http://www.asahq.org/publicationsAndServices/standards/07.pdf accessed May 19, 2009 (Fig 1).
2* Bucy, P.C. (1975). The medical expert witness in malpractice suits. JAMA, 232, 1352–3.
3 Shilkret v Annapolis Hospital Emergency Association, 349 A 2d 245, 249–250 (Md 1975)
4 Peters, P.G. (2002). “Empirical Evidence and Malpractice Litigation”, 37 Wake Forest Law Review, 2002, 757, at 759.
5 Meadow and Sunstein, (2001). “Statistics, not Experts”, 51 Duke Law Journal 629, at 630–31. 2001
6 Moss, S., Opinion for Sale: Confessions of an Expert Witness http://www.legalaffairs.org/issues/March-April-2003/review_marapr03_moss.html#, accessed May 19, 2009.
7 Maryland, DC, New York, and on other grounds in WA.
8 Donald C. Austin v AANS, 253F3d 967 (2001).
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