The essential and ethical expert: Serving as a medical expert witness in the 21^stcentury

Abstract

The seeds of the American justice system were planted by our early English settlers. Major mutations from original British courts have sprouted and become manifest over the years. Only in America do we routinely try medical malpractice lawsuits before a jury of lay persons. In Britain, judges or magistrates decide the case --not because they are experts in medicine --but because they are experts in law, controlling the legal process as they attempt to dispense justice while drawing on testimony from a pool of medical experts selected and maintained by the court.British medical experts have no relationship to opposing counsel but may be interrogated by either of them. In the U.S. each side recruits its own experts and pays for their services. It is natural that the adversarial ensions transfer from lawyers to the experts from either side. But in both systems, ethical medical experts are essential and their purpose is to deliver an education -to a judge in Britain or to a judge and a jury on our side of the pond.Several of us may think our current system that has evolved to resolve malpractice allegations badly needs an overhaul. In fact -to employ a nontechnical descriptor favored by today's youth -it "sucks!" It resembles a huge vacuum cleaner operated by the plaintiffs' bar. We might wish for a better system -in short, tort reform--but as of January 2005, only 22 states have caps on noneconomic awards (a basic reform). Alissa Parady's article in the August AAO-HNS Bulletin reported that of 23 states in crisis, only Texas had achieved potentially effective reform by capping noneconomic awards at $250,000 with the passage of Proposition 12 in 2003. 1 There are some hopeful signs of reform from experiments being conducted, such as the University of Michigan's experience with prompt compensation for medical/ surgical errors and a campaign to improve patient safety and physician communication. They emphasize articulating reasonable expectations, answering all questions, responding to complaints, and helping patients process unanticipated outcomes. The design is to move from a culture of "deny and defend" to "compensate and communicate." The results so far are encouraging (the number of claims has been reduced

Professional Oversight of Physician Expert Witnesses

“…1,25 However, there are few published details of the rules and processes involved and the characteristics and outcomes of cases adjudicated. 10,17,26 This study is the first to our knowledge to provide such information.…”

Testimony by otolaryngologists in defense of tobacco companies 2009–2014

“…Numerous specialty societies have guidelines regarding ethical conduct among expert witnesses . Since 2003, the American Academy of Otolaryngology–Head and Neck Surgery (AAO–HNS) has had such a policy in place .…”

Expert Witness Testimony Guidelines

“…In 2003, the AAO-HNS adopted a process for dealing with members exhibiting allegedly unprofessional behavior during legal testimony. 14 This process has been updated through the years. Briefly, this process may be initiated by any member in good standing and involves a preliminary determination by the executive vice president (EVP)/CEO, the president, and the chair of the ethics committee as to whether the code of ethics has been violated; if this preliminary review determines such a violation has happened, this panel including the EVP, president, and ethics chair also proposes whether the respondent should be censured, suspended, or expelled.…”

“…In 2003, the AAO‐HNS adopted a process for dealing with members exhibiting allegedly unprofessional behavior during legal testimony 14 . This process has been updated through the years.…”

“…The respondent has an opportunity to appeal and request a hearing conducted by a panel appointed by the president and EVP/CEO. Importantly, this process does not involve ongoing litigation to avoid the perception of influencing active legal proceedings 14 . By further incorporating aspects from the policies detailed by the AANS, STS, or a similar challenge process offered by the American Academy of Ophthalmology, the AAO‐HNS may potentially deter grossly inaccurate and biased testimony.…”