“Expert Protect Thyself…”

Too often the professional medical associations view physicians willing to testify truthfully about actual malpractice as “the enemy.”

Such an “us-versus-them” mentality is not only unfair, but contrary to medical ethics, which recognize that physicians giving truthful testimony as experts serve a necessary function in the legal system. The American Medical Association recognizes that a physician making him or herself available for proper expert testimony is in fact an obligation of the ethical physician.

Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.[1]

Nonetheless, recent years have seen a disturbing trend in which some medical associations have brought baseless “complaints” against experts testifying for the Plaintiff.

Such charges are almost never brought against physicians testifying in defense of other physicians. And, regardless of the good-faith of the expert, such charges can be difficult to defend when based on vague and subjective standards, e.g. when opposing litigation experts are expressing honest disagreements as to the standard of care.

Medical associations bringing such charges often act as “prosecutor, judge, and jury” i.e. the same individuals initiating a complaint judging the outcome. [2] It is our experience that many such “complaints” are, unfortunately, improperly motivated and adjudicated in a biased manner.

Recognizing that honest expert testimony serves the highest standards of medicine and an important public policy interest, we have represented physicians providing expert testimony in proceedings before their associations.

We have in some cases been able to convince associations to take a more measured approach, when they understand that their ability to sanction a member physician may be subject to legal scrutiny and that the proceedings must provide safeguards of fundamental fairness (“procedural due process”). [3]

In addition, should an expert be “defamed” by a baseless complaint to an Association, and harmed as a result, the defamed party may have legal redress. [4]

In addition, we assist experts to draft appropriate, professional agreements when providing consulting services. Proper agreements, and practical advice, can help experts avoid misunderstandings and avoid undue or unreasonable scheduling demands for testimony.

It is also our experience that many experts can benefit from what we call “expert law school”: to help experts better understand the legal procedure of depositions and trials. Unfortunately, many attorneys are just too busy with the “legal end” to properly prepare their experts on what to expect in terms of law and procedure. Or, they are reluctant to “teach procedure” to experts while compensating them for their time.

Nonetheless, the expert intending to provide consulting over time has an independent interest in making sure they are familiar with the rules of Court, and what to expect in testimony. Transcripts from prior cases are usually available to attorneys. If testimony is given without an adequate understanding of the legal rules in one case, it may unfairly compromise that expert’s credibility in future cases—to the point of compromising the ability of such an expert to serve in future cases.

If medical-legal consulting is or is going to be part of your practice, you may find it prudent to obtain your own counsel as to consulting arrangements, legal procedure, and association review.

An initial consultation is complimentary.

[1] AMA Code of Medical Ethics, sec. 9.7.1.

[2] See, e.g. Austin v. AANS (2001) (https://caselaw.findlaw.com/us-7th-circuit/1429913.html); Barrash v. AANS (2016) (https://casetext.com/case/barrash-v-am-assn-of-neurological-surgeons-3).
[3] “Peer Review and Due Process,” AMA Code of Medical Ethics, sec .9.4.1: “….Fairness is essential in all disciplinary or other hearings where the reputation, professional status, or livelihood of the physician or medical student may be adversely affected. Individually, physicians and medical students who are involved in reviewing the conduct of fellow professionals, medical students, residents, or fellows should always adhere to principles of a fair and objective hearing, including:
A listing of specific charges
Adequate notice of the right of a hearing
The opportunity to be present and to rebut the evidence
The opportunity to present a defense
Ensure that the reviewing body includes a significant number of persons at a similar level of training.
Disclose relevant conflicts of interest and, when appropriate, recuse themselves from a hearing.
Collectively, through the medical societies and institutions with which they are affiliated, physicians should ensure that such bodies provide procedural safeguards for due process in their constitutions and bylaws or policies.

[4] See, e.g. In re Higby, Court of Appeals, Texas (2002) (https://www.leagle.com/decision/intxco20121220825) in which it was held that the medical society at issue (ACOG) was not a “professional peer review” association entitled to privilege against litigation discovery on issues of potential bias.