Peer reviewed expert medical witness testimony

Transcription

1 1 Expert Medical Consultants, Inc. Peer reviewed expert medical witness testimony An idea whose time has come James W. Futrell, Jr., M.D. Introduction Our medical and legal journals are regularly presenting articles dealing with the malpractice crisis. Assertions of frivolous lawsuits and cover-up of physicians guilty of malpractice abound. Over the past few years, there has been increasing discussion regarding methods of review and sanction procedures for medical specialty experts for alleged improper testimony as to the standards of care for their particular specialty. 1, 2 There have been proposals for medical courts where special judges review and decide the issues of malpractice, after hearing plaintiff and defendant expert testimony. This process eliminates jury participation since proponents of this approach believe that juries selected from the usual jury pool are not appropriately educated to be able to discern the nuances of medical issues related to medical malpractice. There is also criticism of runaway jury excessive monetary awards although there are no peer-reviewed studies that confirm any truth to this assertion. In the trial court circumstance, the judge selects and relies upon expert physicians to provide the medical standards education. Such court appointed experts are selected according to their access to the courts and are not evaluated as to any bias for plaintiff or defendant positions. Representatives from the plaintiff s bar often profess reliance on jury trials and selection of their own experts for malpractice cases rather than these appointees, suggesting a belief that a bias against the plaintiff exists in such circumstances and that judges are less likely to appoint expert medical witnesses who have a history of review and support of plaintiff issues. Similarly there have been aggressive attempts by some specialty organizations to discipline members for supposed erroneous misrepresentation of the standards of care in malpractice cases. 1 The Journal of American College of Legal Medicine includes many recent articles dealing with various facets of this issue. 1, 2 Since most of the attempts to control and discipline the expert medical witness has come from specialty organizations associated with the specialty of the testifying physician in question, there is an impression gleaned through anecdotal reports, that most of the reviews of expert opinion by these organizations have developed against those who choose to serve as expert medical witnesses for the plaintiff. Indeed, there are medical experts who regularly review and testify for the defense who privately state that they do not review for the plaintiff in any circumstance. Each specialty also has its cadre of experts for the plaintiff who rarely appear in a case as the defendant s expert. Since the expert medical witness is in fact an agent of the court, whose purpose is to clarify for the triers of fact, the jury, the pertinent medical standards and breaches in a case without regard for whether the information favors plaintiff or defendant, the refusal to review and testify for either side in a case depending solely upon the facts of the case cannot be justified and demonstrates a potential for bias by experts taking such positions. The attempts to control and discipline the medical expert deemed to be irresponsible in the opinion of his medical specialty has resulted in the formation of special committees within many national medical specialty organizations to review and sanction accused experts. Review of available evaluations in the public domain reveal that the physician under such review is, in most cases testifying for the plaintiff. Specific queries are now taking place with the specialty organizations, but to date, we are continuing to attempt to confirm any specialty organization review and sanction of an expert testifying for the defense.

2 2 Medical Specialty Organizations Conflict of Interest in review of defendant vs plaintiff s experts? Perhaps, based on the above observations, there may be a basis for certain expert medical witnesses testifying for the plaintiff position to believe that their medical specialty review committee is less than even handed in its scrutiny of plaintiff s experts and that they may not get a fair evaluation before this panel. Without commenting on the veracity of such a complaint, the mission of the medical specialty organization is to promote the interests of the specialists it represents. With the continuing crisis in medical malpractice insurance and the initiatives being developed to combat it, these organizations will logically be focused on defense of their members and reduction of liability. A conflict of interest may therefore exist between the mission of the medical specialty organization in promoting and defending the interests of its members, and the expert medical consultant who, as an agent of the court, may through analysis of the standards of care for a specific circumstance, render an opinion supportive of malpractice liability in review of a colleague s clinical actions. Medical specialty review panels have to tread a tightrope in their evaluations and attempted discipline of expert medical witnesses because suspension of membership by a society and other disciplinary measures is often followed by litigation against the specialty organization by the accused expert alleging bias etc. 1 The financial and organizational structure of the non-profit medical specialty organization is not set up to sustain constant litigation defense against specific members for these review activities. For these reasons, activity by these committees cannot be expected to adequately deal with the issue of the aberrant medical expert witness. In addition, none of these measures provide for regular review of the expert medical witness, since these special committees only review testimony as a result of special referral and complaint to the society. Medical Specialty Organizations - Standards of Care? Review of the professional liability statements of major specialty organizations reveals no clear pattern of credentials for designation as an expert medical witness. 3, 7 Any member in good standing with the appropriate board certification and other time dependent certificates of re-education is considered eligible for representation as an expert medical witness. There are no regularly required specific seminars or training required of potential experts. Some of these organizations do convene seminars on expert medical witness testimony at annual education meetings that are not mandatory. Therefore, there is no formal education process for the expert medical witness that teaches the interface between clinical knowledge and the requirements to establish or defeat allegations of breaches of the standards of care. In addition, although certain medical specialty organizations publish practice parameter updates and other treatment protocols, there is no specific document known to be published by any of these organizations that clearly defines the standards of care in the detail necessary to quote at trial. Many of these documents specifically state that they are not intended to define the standard of care. This makes it imperative that expert medical witnesses understand that they and fellow experts in all specialties are collectively defining their specialty s national standards of care in each case via their declarations, depositions and trial testimony.

3 3 Mis-representation of standards of care, Misuse of expert testimony database The effect of misrepresentations of a specialty s standards of care in a malpractice case whether by plaintiff or defendant experts can have far reaching effects beyond the specific case in which the testimony was given. Depositions and declarations are now increasingly being given using electronic audio and video technology. Software now available commercially can electronically dissect and categorize each statement of an expert using keywords and phrases. A database of expert medical opinion on each subject, in each specialty, is rapidly becoming available. This allows for utilization of elements of expert medical testimony given in one case to be used electronically via database access in subsequent cases in other states without necessarily calling that expert to testify personally. Indeed, the expert may not even know that his testimony is being cited in another case as corroborative or opposing testimony. The use of partial quotes and out of context quoting of an expert s testimony also occurs. Erroneous expert medical witness testimony is also being collected and categorized in this way. To the extent that this erroneous medical testimony is allowed to continue without review and challenge, the collective database of expert medical opinion will be contaminated and the standards of care for that specialty, as established by the collective testimony of its medical experts, will also be contaminated. Medical specialty organizations, responsible for the teaching and certification of their specialists, should have a special interest in monitoring and maintaining the standards of care as promulgated by their experts in medico-legal expert witness testimony. Regular review of expert medical witness testimony by medical specialty organizations? None of the expert medical witness review and evaluation committees mention any process to regularly review the activities of their experts unless in response to a specific complaint. Given the economics of defending against litigation, the medical specialty organizations have generally become less inclined to question to known expert witness misbehavior, simply for economic reasons and to avoid potential litigation. As a result, such inappropriate testimony is largely uncontrolled and recovery for real recoverable plaintiff injuries may be delayed or reduced in some instances and lawsuits are inappropriately filed in other cases where secondary review revealed no real breach of the pertinent standard of care despite the aberrant expert s opinion, upon whose evaluation the case was initiated. Although medical specialty organizations are beginning to address these issues, the review process is different as to each specialty and the liability exposure of the medical specialty organization continues to exist. 1, 2 Therefore, there is currently no effective method of review of medical expert opinions given in litigation by the medical specialty organizations. In summary, a review of the state and federal initiatives that provide for peer review reveals that this legislation is incomplete for effective peer review of expert witness testimony on a national basis. Immunity from litigation is a primary requirement to gain the assistance of review physicians. 1, 2 The Health Care Quality Improvement Act, passed in 1986, provides immunity only in limited circumstances and does not protect peer review documents or discussions from disclosure. 1 The state peer review protections are so different in character that they provide little protection when involving entities and expert medical witnesses involving multiple state jurisdictions. 1 The organizational and governmental restraints inherent in present rules and regulations make it difficult to develop a meaningful nationwide, multi-specialty expert medical witness peer review mechanism that would be effective and that could operate without the litigation liabilities now inherent in medical specialty expert medical witness evaluations. The lack of an educational track for expert medical witnesses in any specialty had led to a broad spectrum of expertise in the legal details of being an expert witness and clear standards within each specialty need development.

4 4 Expert Medical Consultants, Inc. (EMC) This company was formed as a non-profit entity with the specific objective of developing a retrospective peer review mechanism for expert medical witnesses for all medical specialties that provided protection against litigation as a result of the review process, and that provides a documented fair way to evaluate expert medical testimony by the most qualified peers of that expert. In its functions of peer review, EMC will evaluate only the elements of expert testimony given in case review and litigation. This is not peer review in the traditional sense of evaluating the physician experts personal medical practice. There is no data collection or review of the physician s clinical practice or patient care in any circumstance and it would be a violation of our charter to do so. Though we use the term peer review in reference to experts being reviewed by experts in their own discipline, our task actually focuses only on standards of care review as testified to by the medical expert under oath. In no circumstance will EMC accept or evaluate any other records or patient data not relevant to this principle. To avoid any possible interference with the legal process, EMC will not entertain any review of incomplete litigation or cases on appeal. This is therefore a closed case review process with data collection procedures similar to the closed case review process of the Closed Claims Project of the American Society of Anesthesiology. 8 EMC will collect public court testimony and records in its review process. The company structure also provides a mechanism to assure fairness in evaluating plaintiff and defendant experts in all specialties, overcoming any perceived bias of medical specialty, insurance plaintiff organizations or others. The company utilizes specific review committees for each specialty, an advisory panel consisting of a Board of Governors that includes representatives across the entire spectrum of interested parties in this process, including representatives of the medical specialty organizations, liability insurance companies, and national plaintiff and defense legal organizations. The judiciary, state medical boards and federal entities will also be invited to participate at the Board of Governor level. Though no outside organization would be a controlling force over EMC or have membership on the EMC board, this advisory group would observe the operation of this non-profit company to encourage fairness and balance as to plaintiff and defendant issues and the interests of the courts in the pursuit of appropriate expert medical witness testimony. Collective meetings of this group will result in advisory reports and recommendations to the EMC Board of Directors. Expert Medical Consultants Group, INC., (EMC), a 501-C non-profit corporation ( ), is structured with its primary objective to provide a peer review (standards of care review) mechanism for expert medical opinions given in litigation and legal review. After exhaustive review and legal opinion, intentional EMC bylaws and business structure development, the protections provided to hospitals and other healthcare entities in the pursuit of protected peer review of its medical staff activities also provide the umbrella for protected peer review by EMC in its review process of evaluating expert medical witness testimony. California s evidence code 1157 and other related statutes available in other states provide the framework for the protected limited peer review activities of EMC in that the organization is 100% controlled by physicians, its structure is non-profit, and its mission is the improvement of healthcare and medical care delivery. Benefits of EMC evaluations will provide appropriate medical standards evaluation, identification and correction of significant clinical risk factors, and litigation cost reduction via decreased trial court utilization.

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6 Requirements for membership as an EMC consultant 6 Membership and certification as a consultant approved by Expert Medical Consultants. Inc. is voluntary and by application only. Requirements for membership include the following: Board certification in an specialty approved by the American Board of Medical Specialties with completion of any required continuing medical education. For allied health specialties where board certification is not required by a single certifying organization, or required as a condition for medicolegal testimony, the committee responsible for that discipline shall determine this aspect of the requirements for membership. Membership in good standing the national medical specialty organization of the applicant State medical licensure or allied health specialty licensure State and county of residence medical association membership where applicable to the specialty Initial and periodic review and approval by the Board of Directors of EMC on recommendation by the relevant specialty committee EMC litigation and hold harmless protections As a condition of acceptance for voluntary membership, member consultants must sign an agreement to hold harmless and free from litigation, EMC, the specialty organization(s) of the expert being evaluated, and any associated consultants/reviewers for opinions given within the administrative processes of EMC regarding the appropriateness of a member s testimony as to concurrence with national standards of care for his specialty in light of the clinical situation evaluated. This agreement and review process covers only prior expert medical witness testimony and declarations involving completed and closed malpractice cases evaluated under the peer review protected structure of EMC. These review processes are secured to render a committee opinion only and individual reviewer evaluations and comments are not created or available for any legal process outside of EMC. The EMC Review Process for Expert Medical Witnesses The bylaws of EMC and the specialty committee evaluation rules process are formulated to insure the following: 1. That all evaluations are conducted with rules to eliminate bias against plaintiff or defendant experts, conflict of interest, or unfairness in the review of any expert s prior court testimony. 2. That the expert being evaluated be allowed to submit evidence to support his standard of care position as part of the committee s decision-making process. 3. The review process will only deal with the review of testimony related to the standard of care issues involved in the case. Opinions and other testimony of the physician expert not pertinent to the evaluation of standard of care issues will not otherwise be evaluated or reported. Likewise, personal issues and other matters of the physician s history will not be collected or evaluated by the review committees or any other committee of EMC. EMC will resist any attempt to petition it for records or testimony of any of its committees, records or employees as it regards any of its peer reviews protected proceedings. 4. The national medical specialty society of the expert consultant involved may be petitioned for background evidence based information regarding certain standard of care issues maintaining anonymity as to the physician under review and that physician s plaintiff or defendant position in the closed case.

7 7 5. The review process is voluntary and the expert being reviewed has the option to: a. Exclude certain specialty reviewers from a list of available reviewers without cause. b. Decline the review process with possibility of exclusion from EMC membership by action of its Board of Directors upon request by his specialty committee. c. Delay the review process citing personal privilege acceptable to the Board of Directors. d. Submit evidence based support for his standard of care position being reviewed to the specialty committee 6. The review process is confidential as is any peer review process and all reviewers must agree to maintain confidentiality. 7. Requests for review will only be accepted from established medical and governmental organizations. Patient, plaintiff and defendant review petitions for review are prohibited. Random reviews initiated internally by EMC may occur without petition. 8. EMC will insure that repetitive, unwarranted reviews will be disallowed. 9. The reports and deliberations of the review panel are protected and non-discoverable as peer review matters. Expert medical witness review processes will not take place in state jurisdictions where state laws and/or state medical board procedures do not allow for the peer review protected procedures of EMC.

8 8 Generic Medical Specialty Review Process 1. The Medical Specialty Review Committee receives a review request from EMC Administration from which all review requests must originate. 2. The Specialty Committee Chair creates a Provisional Review list for this review all of whom have experience in or agree to provide consultations in both plaintiff and defendant review perspectives. 3. EMC administration and the Specialty Committee chair communicate with the expert to be reviewed, listing the cases to be reviewed and provide the list of potential reviewers. 4. The physician under review deletes any reviewers from his provisional reviewer list as he desires, without cause, and submits the list of acceptable reviewers to EMC. The physician may not submit additional reviewers. No preliminary contact is made with potential reviewers by anyone and no case discussion outside the EMC review process is allowed. 5. The physician under review may submit additional evidence based data and electronic presentations to support his standard of care positions. Personal reports and letters of reference will not be allowed. 6. From the reviewer list approved by the physician under review, the specialty committee chair selects a minimum of two reviewers for the actual review. The committee chair or his designate and the reviewers selected constitute that physicians review committee. The selected reviewers are not identified to the physician under review. 7. All reviewers evaluate an exact copy of the same data. A conference of the review panel will allow any reviewer to offer additional information and data to the entire panel for additional consideration. Reviewers may not communicate regarding the evaluation other than at official meetings and teleconferences. Any request for data, clarification of information on standards from any national medical specialty organizations must be transmitted via EMC administration via the specialty committee chair only. 8. After review and consideration of all data and testimony, the review committee chair will develop a consensus report to be approved by a majority of the review committee, each committee person having one vote. 9. The consensus report of the specialty review committee will have one of two possible conclusions: a. The depositions and testimony of the named physician as to the testimony reviewed is consistent with the Standards of Care of (named specialty). b. The depositions and testimony of the named physician as to the testimony reviewed is inconsistent with the Standards of Care of (named specialty).

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10 10 The concept of Expert Medical Consultants, Inc. as a non-profit, voluntary, national peer review organization has been received very positively from many well-respected physicians of national stature and officers of medical organizations who see this as a concept that should grow to encompass a majority of expert medical witnesses. Expert consultants who decline to join this voluntary organization and to subject their expert opinions to retrospective review will, over time, lose credibility. Organizations, plaintiff s attorneys, trial courts and institutions will quickly begin to place greater credibility in the expert for plaintiff or defendant who is potentially willing to defend his position at a panel of his peers on the basis of the standards and training of his specialty, rather than some narrow, self determined opinion not supported by other experts in his specialty. This does not stifle the expert in free expression of his opinions, that are NOT subject to review in this standards evaluation. It is only the standard of care used as the basis for the opinions that is being verified. EMC recognizes that two experts, both correctly defining a standard of care can come to opposite conclusions as to the application of that standard in a specific clinical circumstance. The result of greater scrutiny of the standards upon which our experts are basing their opinions is expected to suppress the filing of frivolous malpractice actions, and to increase the simplified settlement of malpractice actions where liability of the physician or entity due to breach of the standards of care is clear. As a result, EMC expects a significant effect on decreasing the workload of the trial courts in these matters. Decreased filings and simplified settlements without long delays will decrease malpractice costs for all concerned parties, organizations, governmental institutions and the courts. Expert Medical Consultants, Inc. is structured as a non-profit corporation for four primary reasons: 1. A non-profit structure was necessary in order to apply for and be approved as a health-care entity. Designation of this company with this structure and with its primary mission being the review of healthcare related activities allows the company to exist with the same peer review protected status of its organization as hospitals and other healthcare entities. The non-profit structure allows other non-profit entities such as foundations and national medical specialty organizations to provide financial support to EMC because it is providing a benefit to all these organizations through its expert medical standards review process. The non-profit structure allows for financial support from foundations and other entities that require the non- profit structure for financial support. The non-profit structure along with the planned input of the Board of Governors will insure that the mission of the organization stays true to course and considers the input of various interested parties and balance to plaintiff and defendant issues as the company goes forward. Governmental, insurance and organizational research grants will be major funding sources. 2. The planned medico-legal education and re-certification of medical experts needs to be developed for all medical specialties. A core educational process for EMC approved medical experts is an organizational positive as to scope of activities and increased membership. Re-certification is now required periodically in most medical specialties. Re-certification for state medical licenses is also required in all states every few years. EMC believes that it is time for the recertification process to extend to expert medical witnesses as well because of their collective tremendous impact on our professions. Each of the national medical specialty organizations is being consulted. State medical associations are also being brought into the process for their input and representation on the Board of Governors. Consistent, fair and balanced peer review of the expert medical witness can be achieved via Expert Medical Consultants, Inc.

11 Bibliography Nijm, Lisa M.D., J.D., Pitfalls of Peer Review, The Limited Protections of State and Federal Peer Review Law for Physicians, The Journal of Legal Medicine 24: , Cohen, Fred L. M.D., J.D. The Expert Medical Witness in Legal Perspective, The Journal of Legal Medicine, 25: , AANS, AANS Rules & Regulations, VII Expert Witness Testimony, 4. Fortado, Lindsay, In some cases, Judges need their own experts, The National Law Journal, , 5. Hawkins, Asher, Judge orders New Liability in Fen-Phen Cases, The Legal Intelligencer, American College of Legal Medicine, Guidelines on the Ethical Conduct of the Expert Witness, aclm.com, American College of Obstetricians and Gynecologists, Qualifications for the Physician Expert Witness, Acog.com, American Society of Anesthesiology, Closed Claims Project,