Neurology -- Correspondence for Freeman and Nelson, 63 (9) 1557-1558

Correspondence published:

Expert medical testimony: Responsibilities of medical societies: Gary N. McAbee, DO, JD (7 March 2005)

Reply to McAbee: John M. Freeman (7 March 2005)

Expert medical testimony: Responsibilities of medical societies 7 March 2005

Gary N. McAbee, DO, JD,
UMDNJ
3 Cooper Plaza, Suite 309, Camden, NJ 08103
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Re: Expert medical testimony: Responsibilities of medical societies

gnmcabee{at}yahoo.com Gary N. McAbee, DO, JD

As a child neurologist and attorney who has studied the expert witness process, I applaud Drs. Freeman and Nelson's model for expert witness oversight that could form the foundation for an ideal medical model for expert testimony. [1] However, several of their statements are not consistent with current legal "requirements" for scientific experts in U.S. courts. Peer review, evidence-based literature support and "general acceptance in the scientific community" are parameters that judges can consider, but are not required, prior to permitting scientific testimony to be admitted into evidence. [2] The reasons for this are complicated but can be ascertained via a review of the Daubert case [2] and its progeny (e.g. Kumho, Joiner).
These respected physicians express concerns that judges are neither experienced, capable nor willing to challenge expert testimony. From anecdotal experience and conversations, I believe that many judges are equally irritated by improper testimony and do their best to correct the problem, even to the extreme. [3] We should remember that the Daubert Court simply assigned the role of "gatekeeper" to judges in determing whether testimony is sufficiently reliable or relevant to be admitted at trial. The Court noted that it is up to the opposing counsel through effective cross-examination (hopefully with the assistance of the defendant and defendant's expert) to contest questionable testimony.
Drs. Freeman and Nelson also express concerns about juries lacking the expertise to evaluate complicated medical testimony. One could make similar comments about jurors in other cases involving complicated civil and criminal evidence (e.g. securites fraud, bankruptcy). Drs. Freeman and Nelson are correct in their call for leadership in this area by specialty organizations but improvement in the expert witness process will be met by the combined efforts of the medical and legal profession, the judiciary and even the legislature. There is tremendous research in many aspects of the expert witness process. Even something as basic as the rubric "within a reasonable degree of medical certainty" has been defined differently in U.S. courtrooms.
It may be imperative to eliminate all improper expert testimony, but at what cost? Many analyze the expert witness problem in the context of an increasing malpractice problem and attempts at better tort reform. Dr. Freeman relates an anecdotal case of improper testimony similar to ones experienced by all of us who provide expert services. As egregious as this is, it is possible that this type of testimony at trial represents the "tip of the iceberg" of a far more significant problem with experts that may be wasting far more financial resources. I have never been sure whether the focus, and the spending of limited financial resources devoted to improving the expert process, should be spent on oversight of experts who prepare expert reports in anticipation of trial, those who give testimony at depositions/trials, or those who proffer opinions at a much earlier point in the legal process. For example, in half of the states (a number that has been increasing), a medical malpractice case cannot even proceed without a physician providing an affidavit/certificate of merit attesting that malpractice may have occurred. Yet, there are no mechanisms in place to provide any oversight of these physicians and it is unlikely that peer review will be effective since physicians do not provide a detailed opinion but only attest that malpractice is likely based on a review of the records. The extent of this problem at the earlier stages of the legal process is underscored by the related costs. The U.S. General Accounting Office (as well as insurance databases) has reported that over 60% of medical malpractice cases are dropped without payment; between 1985-1998, this occurred at an estimated cost of 3 billion dollars which was spent defending merit less claims and 4.5 billion dollars spent on claims closed without payment during the same years. [4]
I am unaware of any data that quanitifies the validity of expert review at these earlier stages of the legal process prior to cases even proceeding to trial. It is also unclear whether the costs incurred by insurers for these cases far surpasses the costs incurred for payouts for cases with improper scientific evidence lost at trial. Furthermore, the peer review process, espoused by Drs. Freeman, Nelson and others, has several pitfalls including expense (for instance, simply obtaining a deposition of an expert at trial could cost $1,000). [5]
Peer review must also be fair, objective and afford due process to the expert to avoid false allegations and conclusions that would question the validity of the medical oversight process. [6] Rhetoric and acecdotes are unlikely to be effective in correcting this problem. More research is needed at all steps in the legal process where experts are involved to determine what is the most effective and cost-efficient way of providing oversight of the expert witness process.
Critics of the expert witness process may be mildly reassured by a recent study that showed that the only people in the courtroom that jurors trusted less than the trial attorneys were the expert witnesses. [7]
References
1) Freeman JM, Nelson KB. Expert medical testimony: responisiblities of medical societieis. Neurology 2004; 63:1557-1558
2) Daubert V. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993)
3) Albert T. Medical expert barred from Georgia court forever. Amednews.com [serial online] 2004;December 13. Available at http://www.ama-assn.org/amednews/2004/12/13/prca1213.htm.
4) Saxton J. Joint Economics Committee Study. Liability for medical malpractice: issues and evidence, May 2003
5) McAbee GN. Peer review of medical expert witnesses. J Child Neurol 1994;9:216-217
6) Parrish DM. Improving the sceintific misconduct hearing process. JAMA 1997;277:1315-1319
7) Crawford L. Uncertain times influence jurors' attitudes in malpractice trials. Medical liability monitor. December 2003; 28: 4-5.

Reply to McAbee 7 March 2005

John M. Freeman,
Johns Hopkins Hospital
Meyer 2-147, Johns Hopkins Hospital, Baltimore, MD 21287-7247
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Re: Reply to McAbee

jfreeman{at}jhmi.edu John M. Freeman

We thank Dr. McAbee for his thoughtful comments on the role of expert medical witnesses. However, he offers no solution to the problem. While judges and juries can consider the validity of submitted evidence, they rarely have the knowledge or inclination to do so.
We agree with McAbee's point that peer review of testimony must be fair, objective and afford due process to the expert. The American Academy of Neurology's (AAN) process for evaluating the practice of medicine affords such a process but, should a member resign, the AAN has no mechanism for further mitigating the damage which such testimony causes.
While the judicial process for malpractice cases has many problems which Dr. McAbee mentions, we continue to feel strongly that a specialty society has both the expertise and the mechanisms for stopping patently false expert testimony. It only seems to lack the will to do so.