Mary L. Kuffner, J.D.
Associate General Counsel

t the 2003 ASA Annual Meeting, the House of Delegates overwhelmingly approved procedures for review of expert witness testimony provided in a civil or criminal judicial proceeding. In 2005 these procedures were further refined. Any ASA member may submit a complaint against another ASA member alleging a violation of the ASA “Guidelines for Expert Witness Qualifications and Testimony.”

For ASA to consider a complaint, it must be based on expert witness testimony provided on or after October 15, 2003, and the civil or criminal judicial proceeding must be concluded, either by final settlement or exhaustion of all judicial appeals. Because of these prerequisites, the program is still in its infancy, as would be expected, but is quickly gaining momentum. ASA received and considered its first complaint in 2005. This year several complaints have been received, and reviews are in progress.

Relevant excerpts from the Guidelines state: “The [expert] physician’s review of the medical facts should be truthful, thorough and impartial … 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 … The physician should be willing to submit such testimony for peer review.”

The ASA Administrative Procedures, which supplement the Guidelines, also state: “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.”

The review procedures are based on Number 6, Section XIII and ASA Administrative Procedure on the disciplinary procedures in Title VIII of the Bylaws. The following brief summary should assist ASA members in their understanding of the processes for both submitting a complaint and for its review and consideration.

An ASA member who files a complaint (the Complainant) against another ASA member (the Respondent) must submit the following for the complaint to be considered:

• The date of the testimony and the name, address and numbers of the expert witness, and e-mail if known.

• Jurisdictional facts of the case or proceeding in which the testimony was provided, such as the case name, court and docket number.

• Documentation showing when the case or proceeding was concluded and not subject to further appeal, such as a court dismissal or letter from an attorney involved in the case.

• A narrative statement of the specific grounds upon which the expert testimony is deemed by the Complainant to be in violation of the guidelines.

• Excerpts from medical or scientific literature that the Complainant believes are relevant to evaluating the testimony.

• Actual copies of the testimony — the deposition, hearing or trial transcript.

• All exhibits or copies of medical records referred to in the testimony.

• Testimony provided by other expert witnesses and/or the treating physician.

• An index of the above items with each item separately tabbed.

The Administrative Council will consider the complaint first. The president, acting as its chair, may designate one or more of its members, ASA staff or legal counsel to investigate the matter on a confidential basis and provide a recommendation to the Administrative Council. If the council determines that the complaint is complete and sufficient on its face, it must provide the Respondent with a copy of the complaint and an opportunity to respond in writing. The Respondent may provide materials of the type indicated above.

If, after review of all the information received, the Administrative Council finds that there is a substantial question whether the Respondent failed to abide by the guidelines, it shall refer the matter to ASA’s Judicial Council for a hearing on the merits. If the Administrative Council finds that such a hearing is not warranted, it shall advise the Complainant and Respondent, and its decision will be final.

Once a matter is referred to the Judicial Council, the Respondent will have a further opportunity to submit additional information and to request an oral evidentiary hearing. The Respondent also shall have the right to be represented by counsel at his or her own expense and to request the production of any relevant documents in the possession of ASA.

If the Judicial Council determines that the complaint is not valid, its decision will be final. If it determines that the complaint is valid, it shall issue written findings of fact and submit them to the Board of Directors with a resolution recommending an imposed sanction. Any such action contrary to the interests of an ASA member requires a majority vote by all members of the Judicial Council.

If a resolution is submitted to the Board of Directors, the speaker shall convene a meeting of the board to act upon the resolution. At the meeting, the Respondent shall be afforded a final opportunity to present arguments against the Judicial Council’s recommendation for sanction. Following presentations from both sides, the resolution shall be subject to debate. The board may vote to dismiss the complaint, pass the resolution or impose a sanction different from that recommended by the Judicial Council. The board is authorized to sanction the member who provided the testimony with censure, suspension or revocation of membership. The decision of the Board of Directors shall be final.

The complaint record and all proceedings are confidential, except that the final decision of the board imposing a sanction on a member shall be made public. Furthermore, if the board votes for suspension or revocation of ASA membership, ASA is required to report the sanction to the National Practitioner Data Bank. Needless to say, given the potential repercussions of such a public sanction, any member accused of violating the Guidelines should take the allegation very seriously. An ASA member cannot resign membership in an attempt to avoid the charge. ASA Bylaws provide that an attempted resignation by an ASA member against whom a complaint has been filed for any disciplinary matter under the jurisdiction of the Judicial Council will not be accepted.

Ultimately all ASA members should stand behind this program as a legitimate way to self-regulate expert witness testimony, thus maintaining high standards for the profession. The vast majority of the House of Delegates wanted ASA to have the authority to undertake such reviews and to sanction ASA members who violate the Guidelines. The procedures were drafted to provide a member accused of such a violation with sufficient due process to ensure integrity in the program and to withstand any potential legal challenge. Indeed the ASA procedures were modeled after those adopted by the American Association of Neurological Surgeons, which have survived legal challenge in the Seventh Circuit Court of Appeals.

The ASA “Guidelines for Expert Witness Qualifications and Testimony” and ASA Bylaws can be found on ASA’s Web site at <www2.ASAhq.org/publications>. For more information, please contact the ASA Washington Office at (202) 289-2222.

Mary L. Kuffner, J.D., joined ASA in June 2005. Prior to joining ASA, she was Senior Washington Counsel in the Division of Legislative Counsel at the American Medical Association in Washington, D.C.