At the 2003 ASA Annual Meeting, the House of Delegates overwhelmingly approved a new procedure permitting review, following complaint by an ASA member, of expert witness testimony given after October 15 in civil and criminal judicial proceedings. Should such a review result in a determination that the testimony is inconsistent with newly revised ASA “Guidelines for Expert Witness Qualification and Testimony,” the ASA Board of Directors would be authorized to penalize an ASA member giving the testimony with censure, suspension of membership or revocation of membership.

The new procedure is closely patterned after a similar procedure put in place by the American Academy of Neurological Surgeons (AANS) several years ago, a procedure sustained against antitrust attack by the federal appellate court sitting in Chicago, Illinois. Like the AANS procedure, the ASA program extends only to possible sanctions by ASA members providing expert testimony. For obvious reasons, a medical society enjoys no power to impose membership sanctions on any expert not enjoying membership therein; the ASA procedure does provide, however, that an attempted resignation by an ASA member giving expert testimony will not be accepted when a complaint has been filed with respect to the testimony.

As revised by the House, the guidelines provide in relevant part that an expert’s review of the medical facts “should be truthful, thorough and impartial and should not exclude any relevant information to create a view favoring either the plaintiff or the defendant. The ultimate test for accuracy and impartiality is a willingness to prepare testimony that could be presented unchanged for use either by the plaintiff or the defendant.”

The guidelines go on to state that the expert’s testimony “should reflect an evaluation of performance in light of generally accepted standards, reflected in relevant literature, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls outside accepted medical practice.”

Following the action by the House, the ASA Board of Directors adopted an Administrative Procedure, one provision of which supplements the substantive terms of the guidelines. That provision states: “Expert testimony shall be deemed responsible if it is truthful, appears to be based on a thorough and objective view of the patient’s medical history and evaluates the treating physician’s performance in light of generally accepted standards at the time of the occurrence, as reflected in the relevant medical and scientific literature.”

Under the new review procedure, any ASA member may file a complaint documenting the grounds upon which the complainant deems sworn expert testimony — given in deposition, hearing or trial — to be in violation of the guidelines, including excerpts from any medical or scientific literature that the complainant believes are relevant to evaluating the testimony. Complaints may be filed against testimony rendered on behalf of either plaintiff or defendant but cannot be filed until the judicial proceedings have been completed, either by final settlement or exhaustion of all judicial appeals.

The Administrative Procedure, which augments ASA’s already existing complaint procedure (section 8.30 of the bylaws), calls for the Administrative Council to consider the complaint first. The council is authorized to employ the services of investigators to assist it in evaluating the complaint. If it determines that the complaint is complete and sufficient on its face, the council must provide the expert witness with an opportunity to respond in writing.

If the council ultimately finds that the complaint adequately alleges a violation of the guidelines and that the materials before it present a substantial question whether the expert witness failed to abide by the guidelines, it refers the matter to the Judicial Council, which traditionally consists of five ASA past presidents, for a hearing on the merits. If the council finds that such a hearing is not warranted, it advises the complainant and respondent expert, and its decision will be deemed final.

Detailed provisions are contained in the bylaws and the Administrative Procedure for review of the matter by the Judicial Council. Due process protections afforded to the respondent expert include the rights to be represented by counsel, to request the production of any relevant documents in the possession of ASA, to request an evidentiary hearing and to have a transcript kept of any such hearing. The Judicial Council is again authorized to utilize the services of legal or scientific investigators to assist it in obtaining all relevant information.

If the Judicial Council determines that the complaint is not valid, it so advises the complainant and respondent, and its decision will be final. If it determines the complaint is valid, it notifies the parties, issues written findings of fact, including the conclusion that the guidelines have been violated, and recommends an appropriate sanction — censure or suspension or revocation of membership — to the Board of Directors for final action.

At the meeting of the board, the respondent expert is afforded a final opportunity to present arguments against the Judicial Council’s recommendation for sanction. The council’s findings of fact are deemed to be final, but the board will exercise final authority with respect to disposition of the complaint, including dismissal of the complaint or alteration of the sanction recommended by the Judicial Council.
The Administrative Procedure provides that all of the foregoing proceedings are confidential. Only if the board imposes a sanction shall that fact be made public.

At its October 2003 meeting, the House of Delegates also approved the establishment of two reserve funds to cover the potential costs of the new program, one to cover operating and legal costs and the other to cover liability costs in the unlikely event of an adverse judgment in a lawsuit brought against ASA by a respondent expert. Because the program relates only to testimony given after October 15, 2003, in lawsuits that have been finally adjudicated or settled, the House anticipates that these funds may accumulate substantial balances before any expenses are incurred. The Society also is investigating the availability of liability insurance with respect to operation of the program.

Michael Scott, J.D., oversees the federal, state, regulatory, lobbying and legal activities in the ASA Washington Office.