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Sunday, August 21, 2011

Expert Witnesses on Trial


State legislators, physician organizations and courts are taking steps to ensure that the experts provide ethical and appropriate testimony.

By Alicia Gallegos, amednews staff.

The ideal goal of an expert witness during testimony is to be "an indifferent advocate for the truth," said neurosurgeon Jeffrey Segal, MD.

Too often, though, physicians make careers as such experts and use unethical tactics to sway jurors, said Dr. Segal, founder and CEO of Medical Justice, a company that sells medical liability insurance and provides legal resources to combat frivolous claims.

"Expert witnesses are the weak or strong link in any medical liability case," he said.

Lawmakers, physician organizations and courts are taking steps to combat unethical testimony by these so-called hired guns.

In recent years, several states have enacted tighter restrictions on expert witness testimony in medical negligence cases. At the same time, more medical associations and state medical boards have created standards for proper expert witness testimony and acted against experts who violate those rules.

Courts also are taking stronger stances against questionable experts. For example, high courts in Arizona and Maryland in 2009 upheld as constitutional state restrictions against expert witnesses.

"There is a growing awareness on the part of expert witnesses -- for both sides -- that what they are doing is not necessarily going to be kept behind closed doors, which definitely was not the case 10 years ago," said Louise B. Andrew, MD, an attorney and independent consultant for physicians on litigation and expert witness issues. "They can't just go and say whatever they are paid to say and expect that peers will never know."

Florida is the latest state to pass restrictions on the use of expert witnesses in medical liability cases. Under a law signed July 1 by the governor, out-of-state physicians offering expert testimony must apply for a certificate to testify. The state medical board can discipline them if they provide deceptive testimony.

"Before, there was absolutely no accountability for what [expert witnesses] did in Florida," said Jeff Scott, general counsel for the Florida Medical Assn. With the new law, "you can't come into Florida and testify falsely and hope to get away with it."

At least 30 states have similar expert witness laws. Some statutes, such as Arizona's, require witnesses to practice in the same specialty as the physician defendant. Others, like Maryland's, mandate that doctors spend a certain amount of time actively practicing medicine.

The whole story can be found here.