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June 1997
Volume 61 |
Number 6
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| Confessions of
an 'Expert Witness' |
Stephen R. Strelec, M.D.
Committee on Professional Liability
Medical malpractice is a breach in the standard of care that
results in injury to a patient. Because issues involved in malpractice
cases are usually beyond the comprehension of judge and jurors
alike, the court establishes a standard of care based upon the
testimony of "expert witnesses."1
A Weighty Responsibility
Expert witnesses differ from factual witnesses in that they may
give opinions. The opinion of the expert witness is equally important
in the pretrial phase of litigation where expert opinions can
influence pretrial decisions regarding settlement or even the
vigor with which a claim may be pursued. Remarkably, the trial
judge has sole discretion in determining whether or not a witness
is qualified as an expert.
ASA published "Guidelines
for Expert Witness Qualifications and Testimony," which
were approved in 1987 and last amended in 1990. A recent proposal
was made that the ASA establish a mechanism for peer review of
expert testimony.2 This proposal
was not approved and has been referred to the Committee on Professional
Liability for review. Michael Scott, ASA Director of Governmental
and Legal Affairs, has stated that peer review of expert testimony
would prove to be "enormously time-consuming and expensive
... and (might) involve ASA in litigation of its own."3
A Controversial Role
Generic concerns about the appropriateness of expert testimony
are not unfounded. Many authors have highlighted the factors that
can influence the opinions of medical experts. Economics may be
the single most important influence. A medical expert may charge
$400 per hour or more for his/her time and some "popular"
experts may earn up to $250,000 per year, working only part-time.4
Plaintiff experts in particular are often secured through brokers
who maintain lists of available expert witnesses. The trial judge's
discretion in qualifying medical experts has led to several seemingly
outrageous examples of experts with dubious credentials. Convicted
frauds, physicians with revoked medical licenses, non-Boarded
specialists and physicians from a specialty other than the one
on which they are giving an opinion have all been qualified as
experts.
Physicians as medical experts are human and subject to many other
biases. The objectivity of the expert witness may be affected
by the relationships that are formed with the attorneys, plaintiffs
or defendants in the case, thereby introducing an element of advocacy
rather than objectivity.5 Patient
outcome may also influence standard of care judgments. ASA Closed
Claims Project volunteers, reviewing cases with identical fact
patterns, were much more likely to find breaches of the standard
of care when the patient suffered severe and long-lasting injuries.6
Another ASA Closed Claims review demonstrated that anesthesiologists
commonly disagree on appropriateness of care judgments during
chart reviews irrespective of patient outcomes.7
The authors concluded that divergent expert opinions are easily
found.
Personal Observations
In 18 years of practicing anesthesiology, I have viewed the malpractice
arena from many perspectives: as defendant, ASA closed claims
reviewer, malpractice insurance company board member and an expert
witness. The role of expert witness is the only one that has left
me with ambivalent feelings.
At first glance, the role of medical expert is very alluring.
Who among us would not enjoy being treated with deference and
respect as an expert in the field, while at the same time being
paid handsomely for our knowledge and opinions? The break from
the O.R. routine can be pleasant, and case reviews can often be
done at one's leisure. There is also the sense of "doing
your duty" for the system.
During the past 10 years, I have reviewed six or seven cases
as a "medical expert," but on only one occasion have
I been called upon to give testimony at trial. As I look back
now, I am struck by the way in which the trial left me profoundly
ambivalent about the legal process. I harbored no naive preconceptions
about the adversarial nature of an actual trial, but I nevertheless
found it more difficult than I imagined to remain dispassionate
and objective throughout. The pretrial and trial interval took
on many aspects of an athletic competition, predisposing to an
"us versus them" mentality, and there was no doubt that
I was a member of the defense team. The concentrated exposure
to other members of the defense team, including several meals
eaten together during strategic sessions, only served to reinforce
the sentiments of being on one side of a battle. In deference
to defense counsel, I was repeatedly admonished to remain honest
and objective at all times and to never compromise my professional
integrity.
A Vague Sense of Uneasiness
The anesthetic record was understandably a key feature in this
trial, important as much for what it said as well as what it did
not say. We agonized over every detail of the anesthetic record
in court. Gargantuan significance was attached to precisely when
observations were made, laboratory tests ordered, and drugs and
fluids given. Pharmacology and physiology were equally important,
and my role as expert was to explain these difficult concepts
in lay terms. Much to my chagrin, I discovered that my written
expert report was deficient for not having cited basic medical
principles often enough in support of my opinions. The repeated
objections by plaintiff's attorney to my testimony, "...
that's not in his expert report, your Honor ..." was extraordinarily
frustrating. The trial seemed to be a passion play where creating
an impression of what happened superseded the need to establish
the actual facts.
During the trial, we dealt with many issues where all the facts
could never be known and corroborating testimony conflicted. I
was often asked to render a clear and firm opinion based on imperfect
knowledge of real events. My clinical experience and intuition
led me to "sympathize" with the defendant-physician
on most issues in this particular case. I was nevertheless struck
by how the plaintiff's expert could be so equally firm and clear
in his opinions, which were diametrically opposed to my own. In
addition, I found it difficult to sit in a courtroom for several
days looking at the injured plaintiff without feeling some sympathy
for him.
These facts led to a vague sense of uneasiness with my role as
"expert." These emotions were not dissimilar to my feelings
when being a defendant-physician. The trial verdict was for the
defense, and I believe today as then that it was the correct decision.
So You Want to Be an Expert Witness...
The role of expert witness should not be taken lightly and is
best avoided if you are not truly an expert in the field.8
Many factors can lure you into assuming this responsibility: money,
friendship, ego, sense of obligation. Many factors may also bias
your opinions.
If you do become an expert witness, never pretend to be something
you are not, do not volunteer testimony you cannot support and
be prepared to do a lot of homework. Most of an expert's work
takes place off of the witness stand and consists of laborious
hours poring over charts, depositions and expert reports. Remember
that your deposition and expert written report are as critical
as the court testimony and deserve appropriate attention and effort.
Lastly, be aware of the fact that as an expert witness, your
own opinions and professional integrity may be on trial.
References:
- Cheney FW, Kroll DA. Medicolegal aspects
of anesthetic practice. In: Clinical Anesthesia, Barash
et al. eds. 2nd ed. Philadelphia: Lippincott-Raven Publishers;
1992:115-129.
- Resolution No. 9, Expert witness testimony.
ASA House of Delegates 1996 Session. Report 800-1 Pg. 1.
- Written correspondence to Committee on
Professional Liability. September 20, 1996.
- Azevedo D. Disarming hired guns. Medical
Economics. October 14, 1996; 174-183.
- Katz J. The fallacy of the impartial expert
revisited. Bull Am Acad Psychiatry Law. 1992; 20:141-152.
- Caplan RA, et al. Effect of outcome on
physician judgment of appropriateness of care. JAMA.
1991; 265:1957-1960.
- Posner KL, et al. Variation in expert
opinion in medical malpractice. Anesthesiology. 1996;
85:1049-1054.
- Horsley J. If you're not an expert, don't
be a witness. Medical Economics. October 28, 1996:128-134.
Stephen R. Strelec, M.D., is Assistant
Professor of Anesthesiology, Allegheny University of the Health
Sciences, Pittsburgh, Pennsylvania.
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