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December 2002
Volume 66 |
Number 12 |
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Mark J. Lema, M.D., Ph.D. Editor
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Aliens Among Us
An interesting byproduct of the medical liability tort
crisis is the emergence of the expert witness physician.
For some anesthesiologists, this endeavor has become
a full-time profession. Expert witnesses fall into three
categories: defense work only, prosecuting work only
and the “switch-hitter.” With the average
payout for malpractice claims approaching $3.5 million,
this after-hours’ activity can be quite lucrative.
Defense work has, for many years, been the avocation
of academic anesthesiologists. It is a wonderful win-win
arrangement: A beneficial service is provided to fellow
colleagues; a successful defense helps to keep insurance
rates low; and valuable knowledge or a practical lesson
is learned by vicariously retracing a colleague’s
actions through a bad outcome.
In recent years, a different breed of medical expert
has metamorphosed —the plaintiff’s expert
witness. These individuals review cases for the prosecutor
and against one’s colleagues for the purpose of
demonstrating that malpractice has occurred.
As a rule, defense work is good, and plaintiff’s
work is bad. However, defending a bad physician’s
actions so that he or she can injure again has questionable
ethics. Conversely, helping to “pull” the
license on a repeatedly harmful (lethal) physician contributes
to the public’s well-being. There is a problem,
however, when one crosses the line to merely utter what
the prosecutor needs to have stated so as to win the
case.
Recently the American Association of Neurological Surgeons
(AANS) established guidelines for ethical testimony
of its members for or against its members.1
They have established a grievance system to maintain
high ethical standards. A member believing that another
member has acted outside of ethical boundaries can present
his or her findings to the Professional Conduct Committee.
If found guilty, the accused member may be censured,
have society membership suspended or be expelled from
AANS. There are specific guidelines for expert witnesses
to act impartially and prudently. More importantly,
library transcripts of expert testimony are available
to AANS members and their counsel to determine if an
opposing expert witness has testified consistently in
previous litigation.
The AANS program has been successfully implemented and
its actions defended in the courts.2
As a result, the program has promoted the integrity
of expert testimony on both sides of liability
cases. The American Medical Association has endorsed
the AANS professional conduct program.
An ASA ad hoc committee on expert testimony recently
submitted its report to the House of Delegates (428.1)
with five recommendations that call for:
1. A peer-review mechanism to be established
within the Committee on Professional Liability;
2. Public disclosure of expert witness activity
to be mandated for ASA officers and potential
officers;
3. A prohibition on printing or advertising one’s
expert witness activity using ASA membership or
officer status as an advantage;
4. Allowing ASA officers to serve as expert witnesses
since they overwhelmingly defend standards of
care to the benefit of the Society’s members;
5. Membership in the ASA should be contingent
on adherence to ASA standards and guidelines but
is not easily enforceable. |
When a physician joins a professional society, he or
she believes that all members have similar goals for
anesthetic care, patient safety, equitable reimbursement,
technological advancement, etc. If another member uses
the opportunities afforded to him or her by that profession
for unscrupulous financial gain, a mechanism must then
be in place to remove that member. ASA officers have
taken the step to ensure that members who are expert
witnesses should be informed, objective and medically
rational. We need to adopt this program now even if
it means assessing the members’ dues to launch
it. We all need it as our security blanket against being
bushwhacked by “members of the third kind.”
References:
1. Pelton RM. Professing professional conduct.
AANS Bulletin. Spring 2002:7-13.
2. Donald C. Austin MD v. American Association
of Neurological Surgeons, 253 F.3d 967, 972-3
(7th Cir. 2001).l |
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The views expressed herein are those of the authors and
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