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On the hot seat: Physician expert witnesses

With scrutiny high and the other side out to get the "hired gun," court appearances can be a trial for physicians who serve as expert witnesses.

By Tanya Albert, amednews staff. April 8, 2002.

Chicago rheumatologist and internist Scott Kale, MD, knows he's in for a long day when he treads into the courtroom as a medical expert witness.

He's reviewed the case and knows exactly what his opinion is. But Dr. Kale -- who has a law degree, too -- also knows that lawyers from the other side are going to ask him questions designed to throw him off course.

Testifying is practicing medicine

They'll ask the same question nine different ways, hoping to get him to say something that veers from his originally stated opinion. He sits up straight in the stand and listens closely to each question before answering.

"It's exhausting," said Dr. Kale, who spends about three hours on the stand in the shortest of cases. "Every word counts. You really have to concentrate. You can never relax, because it can always be tricky."

Physicians take the stand in many types of cases: medical malpractice, where they may be testifying for or against colleagues; paternity suits, in which they are DNA experts; and criminal cases, in which they can give testimony on topics ranging from the cause of death in a homicide to the sanity of the person on trial.

Each arena is demanding. But medical malpractice cases -- in which one physician must testify against another physician -- can be particularly uncomfortable.

Medical expert witnesses charge anywhere from $300 to as much as $800 an hour for the initial work.

The years when doctors would not testify for plaintiffs in medical malpractice cases because they didn't want to break a code of silence are long gone. Although a physician still may not want to testify against a colleague in his own community for professional reasons, many physicians are willing to step forward to testify in cases where they don't know or work with the physician on trial. They say it's a matter of social responsibility if the facts show that a patient was harmed because of negligence.

"It's awkward," said Martin L. Bell, MD, a Scottsdale, Ariz., plastic and cosmetic surgeon, who has testified for both the defense and the plaintiff in medical malpractice cases in his specialty. "As a doctor, you understand that the practice of medicine isn't perfect, and you feel bad for doctors who get sued. In most cases you see, it's a good doctor who made a mistake."

But it's less awkward when the physician made a "terrible mistake" or substance abuse contributed to the error being made, said Dr. Bell, who also holds a law degree.

Behind the scenes

In reality, very few medical malpractice cases make it all the way to trial. Physicians who serve as medical expert witnesses get involved very early in the process -- often before the case is even filed.

The doctor looks at the facts and decides if there was a deviation from the standard of care and then reports the findings to the attorney, who will decide whether to file a malpractice case and whether he or she wants the physician to serve as the medical expert witness.

Physicians who review cases say they do see some cases that could be considered frivolous.

"And I tell [the lawyers] that," Dr. Bell said.

But most of the cases they see have some merit to them. "Most plaintiff attorneys only want good cases," Dr. Bell said. "Most of them aren't nasty guys out to get doctors. Plaintiff attorneys reject a lot of cases."

The majority of physician medical experts who review cases use very objective methods to decide what they will say about the case.

"I look at the facts," Dr. Kale said. "The facts comply with or don't comply with the standard of care. ... If I knew the doctor I wouldn't take the case."

Dr. Bell has a similar method. "If the opinion suits the attorney, they can use me or they can decline," he said. "Or if I'm not comfortable with a case, I can decline."

Credible experts

Physicians often complain that the court system has too many expert witnesses that are "hired guns" who are testifying in areas where they possess no personal knowledge.

No one keeps statistics on just how often that happens, but lawyers and physicians who have been expert witnesses say they've witnessed physicians testify about things beyond their qualifications. Indeed, there are a few physicians who have earned a reputation of making a living out of testifying as an expert witness willing to say whatever a lawyer needs them to say.

Richard Ludgin, MD, vice president of the quality center at the University Hospitals of Cleveland and an adjunct law professor at Case Western University in Cleveland, recalls one case involving spine surgery where the expert couldn't even draw the anatomy of a spine correctly. But the jury chalked it up to the witness being nervous and still believed his testimony.

"In good cases, usually the quality of experts is good," said Dr. Ludgin, who has his law degree. "In marginal cases, that is when you end up with junk science."

Still, experts say, the problem is likely less common then people think.

"This is not that much fun that you're willing to go around and make your living testifying," said Dr. Kale, who reviews 20 to 25 cases a year and gives his opinion on whether the standard of care was followed. He ends up testifying in court maybe a couple times a year.

Physicians who venture from their area of expertise not only face the possibility of looking like a fool in front of the jury but in rare cases also could face disciplinary action.

The American Medical Association says medical testimony is akin to practicing medicine and should be subject to peer review. The Florida Medical Assn. and the American Assn. of Neurological Surgeons have similar ethical policies designed to keep scientifically unsound testimony out of the courtroom. AANS has reviewed about 50 members for possible misconduct over the past 15 years.

Last year, when an AANS member sued the organization after it suspended him for his testimony, the 7th U.S. Circuit Court of Appeals upheld a medical society's right to discipline its members.

In Florida, the medical association can turn its disciplinary action over to the state medical board for review.

An unqualified expert witness also poses a risk for the attorneys involved as well. The opposing side could rip him or her to shreds.

"Very few good plaintiffs lawyers will have physicians testify about something that they haven't done," said Saul Morse, vice president and general counsel of the Illinois State Medical Society and Illinois State Medical Insurance Services Inc. "Plaintiffs' lawyers aren't going to have their case blow up on them."

"I'm not interested in an orthopedic surgeon giving testimony in a case and going into an area of neurology where they're not qualified to testify," said Belleville, Ill., lawyer Alan Pirtle, who often represents plaintiffs in medical malpractice cases. "If the defense attorney is paying attention, they are going to jump on that."

Not about the money

Testifying as a medical expert witness can be financially lucrative. The going rate varies greatly. Some doctors charge $300 an hour, while others charge as much as $800 an hour for their initial work. During depositions, when they have to schedule time out of the office, they charge more to compensate for the money they are losing because they are not seeing patients. And when they are in court testifying, physician expert witnesses may charge a flat fee for the day.

But most physicians say money is not the ultimate motivating factor.

"It's fun," said Elizabeth Panke, MD, PhD, founder of Genetica DNA Laboratories Inc., Cincinnati, Ohio, who testifies about DNA tests she performs to determine genetic relationships. "I enjoy being a teacher. I enjoy helping the judge and jury understand."

Dr. Bell believes he is fulfilling a social responsibility when he reviews cases or testifies for the plaintiff or defendant.

He testifies for plaintiffs about three times more often than he testifies for defendants.

Although the code of silence has been broken, defense attorneys still have an easier time finding witnesses, Dr. Bell said.

"It's 3-to-1 on the plaintiffs side because it's hard to get experts for plaintiffs," he said. "Defense teams tend to call local doctors, friends and colleagues."

Dr. Kale, who has been offering expert witness testimony since 1983, also testifies for both plaintiffs and defendants.

He said he does it because he enjoys looking at the process and coming to a conclusion. It's an exercise to see what went wrong and the conclusions he draws reminds him to be diligent in his own practice. The majority of medical errors he sees could have been avoided.

He resents when lawyers try to trick him into saying something rather than sticking to the facts or when they accuse him of being a "hired gun" in front of the jury.

"It shouldn't be a game," Dr. Kale said. "It should be an honest search for what happened and what's fair. And that is what the expert role is: getting to what is fair."

ADDITIONAL INFORMATION:

Testifying is practicing medicine

AMA policy says that when a physician gives medical legal testimony, it's considered the practice of medicine and it should be subject to peer review. The Association's House of Delegates passed the resolution in 1997 and reaffirmed it in 1998, 1999 and 2000.

So you want to be an expert witness

There's no one way to become a medical expert witness. Many physicians who testify in medical malpractice cases got their start when one lawyer asked them to review a case. From there, their name was circulated among other lawyers involved in cases that called for medical expert opinions.

Other physicians got involved by letting lawyers in their local community know through letters or phone calls that they were available to review cases in their area of expertise. And some looked in the back of legal or medical journals or periodicals and contacted services that advertised as a registry for medical expert witnesses.

"There's no school to go to become a witness," said Maxwell J. Mehlman, law and biomedical ethics professor and Law-Medicine Center director at Case Western Reserve University School of Law in Cleveland.

But there are some common characteristics lawyers look for in expert witnesses.

Qualifications. The physician needs to know his or her field, and good lawyers will look for people who are experts in the same area as the one called into question in the case.
Communication skills. Witnesses need to be able to take complex information and break it down in a way that a jury and judge can easily understand.
Appearance. For better or worse, lawyers say it matters.

"You want the jury to really like your witness," said Saul Morse, vice president and general counsel of the Illinois State Medical Society and the Illinois State Medical Insurance Services Inc. "Like them. Believe them. Trust them."