February 1, 2013
Volume 77, Number 2
Committee News: Expert Witness Testimony Review
Gregory K. Unruh, M.D., Chair Committee on Expert Witness Testimony Review
I have the privilege of Chairing the ASA Committee on Expert Witness Testimony Review. Many members have commented to me that they do not know of the committee or its work, so I’ll try to provide a little insight into the committee’s history and its activities.
The ASA Committee on Professional Liability proposed revisions to the then-current Guidelines for Expert Witness Qualifications and Testimony to the ASA House of Delegates, which were adopted in 2003. The preamble of the guidelines (see www.asahq.org and look for the Standards and Guidelines page under “Expert Witness”) reads:
“The integrity of the litigation process in the United States depends in part on the honest, unbiased, responsible testimony of expert witnesses. Such testimony serves to clarify and explain technical concepts and to articulate professional standards of care. The ASA supports the concept that such expert testimony by anesthesiologists should be readily available, objective and unbiased. To limit uninformed and possibly misleading testimony, experts should be qualified for their role and should follow a clear and consistent set of ethical guidelines.”
Part A of the guidelines describes the qualifications of an expert witness – that the expert should have a current, valid and unrestricted license, board certification and be active in the practice of anesthesiology at the time of the event about which the testimony is given.
Part B sets forth the specific guidelines for testimony:
1. The physician’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 by either the plaintiff or defendant.
2. The physician’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.
3. The physician should make a clear distinction between medical malpractice and adverse outcomes not necessarily related to negligent practice.
4. The physician should make every effort to assess the relationship of the alleged substandard practice to the patient’s outcome. Deviation from a practice standard is not always causally related to a poor outcome.
5. The physician’s fee for expert testimony should relate to the time spent and in no circumstances should be contingent upon outcome of the claim.
6. The physician should be willing to submit such testimony for peer review.
All ASA members are governed by ASA’s bylaws, which incorporate ethical guidelines of the society. This means ASA members agree to abide by the guidelines when offering expert testimony. ASA has long had a process in the bylaws to discipline its members for violations of ASA bylaws. When the revised guidelines were adopted, ASA revised its processes in the bylaws and administrative procedures to consider ethical complaints against members for alleged violations of the guidelines with respect to expert testimony given on the record (e.g., by sworn statement, affidavit or testimony at a deposition hearing or trial) on or after October 16, 2003, in a civil or criminal judicial proceeding that is final and not subject to further appeal.
Under those new procedures, review by the Administrative Council of complaints alleging violations of the 2003 guidelines was under way in 2005 with hearings conducted by the Judicial Council and recommendations for sanctions considered by the ASA Board of Directors. In October 2008, subsequent to evaluation and recommendations offered by the Administrative Council and the Office of General Counsel, Title VIII of the bylaws was further revised to improve the Expert Witness Testimony Review Program and strengthen the “due process” protections afforded to those with testimony under review. As a result of those changes, the Administrative Council no longer reviews members’ ethical complaints if they pertain to expert testimony.
The Committee on Expert Witness Testimony Review was established in 2009 to review ethical complaints alleging a violation of the guidelines. The Judicial Council was transitioned from the primary review body to an appellate body that evaluates the findings and recommendations of the committee on appeal. In 2011, the ASA Board of Directors created a Board Committee on Expert Witness Testimony Review to consider recommendations for sanction that pertain to expert testimony. Delegating consideration of these matters to a committee has better enabled ASA to ensure confidentiality, thorough consideration of the proposed sanction and greater efficiency by increased flexibility in scheduling meetings. Possible sanctions include censure, suspension of membership or expulsion (termination of membership).
As of the time of this writing, 29 complaints have been received since the program was created, five of which were not accepted for review due to inappropriate submissions or withdrawal by the submitter. Nineteen complaints have been processed to completion under previous and current procedures. Two complaints have resulted in the sanctioning of an ASA member. The Board of Directors’ actions and the findings upon which they are based can be found at: http://www.asahq.org/for-members/office-of-general-counsel/expert-witness-testimony-review-program/board-action.aspx.
Other complaints have been dismissed or closed at various levels of review (see below).
Since 2009, the committee has worked diligently to perform its duties as charged by the bylaws. The committee has considered 12 matters that have been processed to completion (see below). In five matters, guideline violations were found. Of those, five matters were appealed to the Judicial Council. The Judicial Council upheld some or all of the guideline violations in four of the five appeals. Of the two matters not appealed, one was submitted to the board by the committee with a recommendation for a sanction and the other was not. Seven matters were dismissed by the committee.
1. Sanctioned by BOD (2011).
2. BOD Action – Resolution for sanction submitted by committee did not pass by required three-fourths vote.
3. BOD Action – Resolution for sanction submitted by Judicial Council did not pass by required three-fourths vote.
4. Guidelines violations upheld on appeal by Judicial Council/no sanction recommended – matter closed.
5. Guidelines violations upheld in part on appeal by Judicial Council/no sanction recommended – matter closed.
6. Dismissed by Judicial Council after appeal.
7. Guidelines violations found by committee in part/no sanction recommended – matter closed.
8. Dismissed by Committee – complaint never sent to respondent.
9. Dismissed by committee.
10. Dismissed by committee.
11. Dismissed by committee.
12. Dismissed by committee.
13. Sanctioned by BOD (2007).
14. Dismissed by Administrative Council – complaint never sent to respondent.
15. Dismissed by Administrative Council.
16. Dismissed by Administrative Council.
17. Dismissed by Administrative Council.
18. Dismissed by Judicial Council after hearing.
19. Dismissed by Judicial Council after hearing.
At the time of preparation of this article, the committee has one matter under investigation, one undergoing an appeal, one referred for a hearing and two others awaiting review.
The original committee members included:
• Gregory Unruh, M.D., Chair
• James P. McMichael, M.D.
• Patrick Birmingham, M.D.
• Edward Michna, M.D., J.D.
• David E. Byer, M.D.
• Robert B. Fisher, D.O.
• James S. Hicks, M.D.
• Peter L. Hendricks, M.D.
• Scott Kercheville, M.D.
• Terry Walman, M.D., J.D.
In 2011, a new eleventh member was appointed to the committee, Casey Blitt, M.D. In 2012, Dr. Byer retired from the committee and three new members were appointed, Michael Entrup, M.D., Wendy Kang, M.D., J.D., and Robert Kettler, M.D.
The members of the committee review thousands of pages of testimony, medical and other records, participate in countless conference calls to review and deliberate on their findings, travel to Washington, D.C. to conduct in-person hearings, and spend countless hours writing and reviewing documents. It is time-consuming but important work!
The committee takes every precaution to ensure that its review and deliberations are strictly confidential and that each respondent receives proper due process. No committee activity is publicized. Only a sanction passed by the board committee becomes public knowledge.
The chair wishes to thank all members of the committee for their hard work and commitment, and their diligence and dedication to detail.
The chair would also like to thank and recognize
Ms. Mary Kuffner, ASA General Counsel, for her insight, counsel, foresight and administrative fortitude in leading this program forward through many obstacles, known and previously unknown. Without her dedication, the program would likely founder and would not well serve ASA, the respondents or the complainants.
Gregory K. Unruh, M.D. is Associate Professor and Program Director,
Department of Anesthesiology,
Designated Institutional Official,
Associate Dean for Graduate Medical Education, University of Kansas
Medical Center, Kansas City.
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