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States Enact Expert Witness Legislation for Medical Injury Actions

By Christina Michelle Jordan, Litigation News Associate Editor – October 19, 2011

At least thirty states [PDF] have now passed legislation to reduce fraudulent, misleading, or deceptive testimony of expert witnesses in medical malpractice cases. Joining this majority, Florida recently passed a bill (effective Oct. 1, 2011) giving the state the authority to hold medical experts accountable for their testimony.


Expert Witness Legislation
Florida has existing legislation that requires expert witnesses to have expertise in the same field as the medical care at issue. Florida’s expert witness bill, HB 479, adds a requirement that physicians and dentists licensed in another state to obtain an “expert witness certificate” prior to testifying. Florida’s expert witness bill also gives the Florida Board of Medicine or the Board of Osteopathic Medicine and the Florida Department of Health authority to discipline expert witnesses providing deceptive or fraudulent testimony.


In light of the current trend of states enacting legislation increasing restrictions on expert witnesses, the American Medical Association (AMA) approved model legislation (subscription required) for expert witnesses in June 2011. Like the Florida expert witness bill, the AMA model legislation recommends out-of-state expert witnesses obtain an in-state certificate [PDF] before providing testimony. As with Florida, the AMA model legislation recommends that: (a) doctors giving expert testimony be certified by a board recognized by the American Board of Medical Specialties (or an equivalent board), and (b) they have expertise (i) in the same field as the defendant or the same disease, or (ii) process or procedure performed in the case, or (iii) have spent a substantial amount of time teaching on the medical care at issue at an accredited medical school.


Expertise Requirement Similar to Other States
Florida’s expert witness bill—and the AMA model legislation—are similar to the existing expert witness legislation in states such as Georgia, South Carolina, Arizona and Maryland, in that all require that testifying doctors have expertise in the same specialty as the medical care at issue. The expert witness legislation in these four states does not, however, have Florida’s certification requirement.


An expertise requirement, “ is a very good way to try to limit who is able to testify against whom. From the plaintiff’s side, I don’t think you’ll see many folks upset about that type of legitimate reasonable limitation on expert testimony,” says Erik H. Olson, Atlanta, cochair of the Medical Professional Practices Subcommittee of the ABA Section of Litigation’s Health Law Litigation Committee.


“Before tort reform, basically, if you had MD behind your name, you [could] testify against any other doctor,” notes James V. Painter, Augusta, GA, cochair of the Medical Professional Practices Subcommittee of the Section of Litigation’s Health Law Litigation Committee. “Physicians in an entirely different field of practice, [could] testify against a specialist, such as a pediatric orthopedic surgeon, or someone [else who is] extremely specialized, when they had no business doing so,” he adds.


State Authority to Discipline Out-of-State Expert Witnesses
State medical boards or similar professional organizations are responsible for physician discipline. This includes discipline of doctors who provide improper expert witness testimony.


State medical boards and professional organizations have different disciplinary processes. Some state medical boards fine doctors and may suspend or revoke a physician’s license as a disciplinary measure. Some professional organizations, such as the American Academy of Emergency Medicine, publish testimony online as a deterrent for providing fraudulent testimony.


Medical associations should not face liability for selecting physician testimony for publication according to Painter. “[A court transcript] is a public document. Just choosing which physicians depositions you are going to put up there, as long as [the professional organization doesn’t] make any improper comment, I don’t think there is any problem with that whatsoever,” he says.


Not all state medical boards and professional organizations actively monitor expert witness testimony. Most state medical boards, like lawyer’s boards of professional responsibility, are complaint driven. Thus, state medical boards and professional organizations investigate instances of allegedly fraudulent or improper expert witness testimony only when brought to their attention. With expert witness legislation, such as Florida’s expert witness bill, states do not need to rely on out-of-state medical boards or professional organizations for disciplinary action.


A Chilling Effect on Expert Witnesses?
Some fear that expert witness legislation may reduce the number of qualified expert witnesses testifying and the quality of the testimony. The certification requirement may even deter some well-qualified doctors from serving as expert witnesses altogether.


Some doctors “don’t want to subject themselves to another state’s medical board,” opines Painter. “My concern is that top-notch, highly qualified experts that really know what they are talking about are just not going to get involved in cases in the states that have that kind of a certification requirement,” he continues.


“It may be more difficult to get an expert because they don’t want to have to go through the hassle of filing with the medical board of Florida and paying this fee,” notes Olson. “The assumption is that [expert witnesses] are hired guns who will say and do anything. I think that is an inaccurate assumption,” adds Olson. While acknowledging there is a certain percentage of medical experts who “are like that,” Olson’s experience is such “hired guns” constitute a small percentage.


Another concern is that the certification requirement may not deter the expert witnesses who provide fraudulent testimony. “I think that your hired gun types may not really care. They’ll just get the certification anyway, because they’re out there oftentimes giving testimony that is polar opposite depending on whether they have been retained by the plaintiff or defense,” notes Painter.


Enforcing Expert Witness Legislation
Painter also wonders about the logistics of enforcing the expert witness legislation. He notes that a flood of requests for certification, following up on testimony submitted, and enlisting a panel of physicians to look over the testimony to determine whether it was ethical will require a lot of time and man hours. In short, the task of policing rogue experts is potentially daunting.


“Are [the states] really going to put some teeth in this,” Painter asks. If “Florida does follow through . . . and disciplines some doctors, I think certainly that [Florida’s expert witness bill] will have an effect.”


Keywords: litigation, health law, expert witness, legislation, Florida, American Medical Association, medical malpractice, testimony, certificate


 
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  • November 4, 2011 – I think the plaintiff's bar will see problems with the legislation. Most doctors want to just practice medicine and are reluctant to give testimony in a legal case. If they have another layer of concerns about the process, the number of potential experts will be significantly reduced.


    There is also the fear that the legislation is primarily intended to limit plaintiff cases and will be enforced unfairly against doctors that testify for plaintiffs. Even if this fear is unfounded, many will not be able to justify the risk.


    This is such a conservative and skeptical era in our country. With such an environment, it is hard to see why defense counsel can not do an adequate job of demonstrating that an untruthful or unqualified expert should be disregarded. And on the plaintiff side, I don't detect a lot of political will to hold defense experts accountable.

  • November 4, 2011 – So next a statute requiring engineers testifying in cases to register in Florida? Accountants? Architects? Of course not. The goal is focused and sinister: erect yet another barrier to justice for injured patients. If Florida physicians were willing to review cases for malpractice and, more importantly, testify in Florida courtrooms to the violation of the standard of care, there would be little or no need to seek expertise in other states. But that would subject them to derision, at a minimum, among their colleagues for having had the audacity to calling it as they see it. The real object of the Florida legislation is to keep the truth hidden to avoid accountability. The legislature should have the good sense to focus on promoting patient safety, but that is too much to hope.


 

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