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February 2003
Volume 67 |
Number 2 |
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‘To Tell the Truth’
Many years ago, or so it seems, there was a syndicated
CBS television quiz show called “To Tell the Truth.”
For those of you who do not remember this show, allow
me to tell you how it was played. There was a four-person
celebrity panel who would alternate asking questions
of three guests in an attempt to determine which one
was actually the person all three purported to be. After
the questioning period was over and the panel had voted,
the “real” person would stand up. Sometimes
the panel chose the right person; sometimes they did
not. Nonetheless, in this show, truth would always triumph,
and, after all, it was only a show for the enjoyment
of the audience.
So why is this lesson on ancient television history
important? It is essentially the same game played out
in courtrooms all across the nation every day. You ask,
“How so?” Please follow along, and I will
set the stage.
A physician is served with legal papers alleging negligent
medical care. After much preparation, the trial day
arrives. Both the defense and the plaintiff’s
attorneys have engaged the services of expert witnesses
to substantiate their position in the matter in question.
A jury of peers has been impaneled to hear the evidence
and render a verdict in the matter. Both sides present
their cases, and both expert witnesses hold forth that
they alone have the truth.
Occasionally, outrageous claims are made by one or more
of the experts. How is the jury to decide which expert
to believe? It is a safe bet that there is little, if
any, medical knowledge present on the jury. Here is
where reality differs from the television show. Truth
does not always triumph, and this is not a show for
the enjoyment of an audience.
The June 2002 ASA NEWSLETTER titled “Professional
Liability: How Do We Solve the Problems?” addressed
a number of issues related to the present medical liability
crisis. We have little control over some of these issues.
In other areas, however, we can have some control.
I wish to focus your attention on an issue where we
can have some control: expert testimony. In that regard,
I call your attention to a letter to the editor from
Joseph P. Annis, M.D., in the October 2002 NEWSLETTER.1
Dr. Annis cites expert testimony that clearly falls
outside of the range of what is acceptable and represents
a difference of opinion. In short, it is outrageous.
There are other anecdotal reports of similar testimony
involving ASA members who work as expert witnesses.
The American Association of Neurological Surgeons (AANS)
has addressed this issue by establishing a process by
which it can sanction its members for giving unacceptable
expert testimony. The sanctions can range from a letter
of admonition (such letters are not a formal sanction)
to a letter of censure and ultimately to expulsion from
AANS. The process has withstood legal challenge and
is now one of the benefits that AANS provides to its
members. A report of how one AANS member benefited from
this process is included in an AANS Bulletin
article that describes their process.2
It is time that ASA follows the lead of AANS.
Using the experience of AANS as a guide, I have been
asked by ASA President James E. Cottrell, M.D., to explore
this issue with legal counsel and prepare a plan for
the ASA House of Delegates to consider in October 2003.
It is important to note that this will not be a budget-neutral
issue. In fact, the AANS experience shows that the cost
of its process represents about 5 percent of its annual
budget. If you translate that to ASA, it represents
about $1 million per year. Before you recoil in horror,
consider that ASA had more than 38,000 members in 2002.
The cost of this benefit, should ASA decide to proceed,
would be slightly more than $26 per year per member.
I would gladly pay that additional amount each year
if I knew there was a process in place that could deal
with outrageous expert medical testimony by ASA members.
How about you?
References:
1. Annis JP. Junk testimony contributes to our
malpractice crisis. ASA Newsl. 2002;
66(10):37.
2. Pelton RM. Professing professional conduct
— AANS raises the bar for expert testimony.
AANS Bulletin. Spring 2002:7
<www.neurosurgery.org/aans/bulletin/spring02>.
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