Medical expert witness standards long overdue

By Maryanne C. Bombaugh, M.D.

Historically, judges have been responsible for deciding who is qualified to testify in their courtrooms.

Their decisions on admitting expert testimony are often critical to the outcomes of medical malpractice cases, and the factors judges should consider in making those decisions constitute one of the more contentious areas in professional liability law.

The state medical society has advocated for passage of two bills currently before the state Legislature that would set minimum professional standards for physicians to be recognized as expert witnesses.

Setting standards for the admission of testimony is not a new concept; for medical experts, it’s long overdue.

Such legislation should pass for three reasons: (1) it offers reasonable minimum standards for expert witnesses; (2) it will help to prevent frivolous cases from moving forward; and, perhaps most important, (3) it will help plaintiffs, defendants and juries in their efforts to see justice done.

Spurred by vast amounts of research and technology, medical knowledge is expanding rapidly. With its specialties and sub-specialties, medicine becomes more scientific and technical as each year passes. A true expert witness must understand both today’s standard of care and the standard in effect at the time of the alleged negligence.

Physicians are in a unique position to recognize evolving standards of care and the difficulties inherent in finding qualified experts to testify in professional liability cases.

The American Medical Association and more than a dozen medical specialty organizations across the country have adopted standards for expert witness testimony, either separately or as part of their codes of ethics, some as far back as 10 years ago.

Our state medical society has also adopted such standards, consistent with those of organizations nationwide.

Under our guidelines, a medical expert must hold a current, valid, non-restricted medical license; be board-certified in the same specialty as the defendant; be active in clinical practice; and comply with the AMA’s policies on medical testimony, false testimony, peer review of medical expert witness testimony, and other issues.

House 985 and Senate 1316 are two bills that would strengthen our medical malpractice process with respect to expert witnesses.

House 985, offering a comprehensive approach to improving the state’s medical liability system, would require an expert witness to be board-certified in the same specialty as the defendant physician.

Senate 1316 incorporates offering expert medical testimony into the definition of the practice of medicine. The bill would require any expert witness in Massachusetts to have a medical license in the state.

Combined with requirements for board certification, this provision would set standards for the courts and remind expert witnesses for both sides that honest testimony is essential to their professional reputation and standing.

In medical malpractice cases, no winners emerge. The plaintiff believes a wrong was inflicted and must live with the result and its costs, perhaps for a lifetime. The defendant physician, who usually believes he or she acted in accordance with the standard of care, has a reputation and career at stake.

In cases that go to trial, both parties suffer through years of litigation with intense stress and uncertainty. While court cases should be rare, they should be completed with honest reviews of the medical records and true expert opinion on the standards that records show were met or not met.

Respected organizations, including The Joint Commission and Common Good, believe our medical liability system needs repair. Currently, few patients who deserve compensation get it, a fear of lawsuits creates defensive medicine costing billions, physicians limit services to reduce risk, and patient safety efforts fail to get the attention they deserve.

Opponents of the pending expert witness legislation will say that every restriction placed on the courts strips away the rights of people seeking redress, that physicians and hospitals deserve no special status as defendants, and that the Legislature must have an overwhelming public policy necessity to even consider regulating what a plaintiff may put before a jury.

But the fact is the public will be well served by mending the medical liability system.

Those who deserve compensation will receive it faster, access to care will expand, costs will be reduced, patient safety will improve, and judicial findings will match clinical standards.

Passing expert witness legislation is an important step forward in fixing a broken system.

Dr. Bombaugh, who has served as an expert witness, is Vice-Chair of the Massachusetts Medical Society’s Committee on Legislation, President of the Barnstable District Medical Society, and an obstetrician-gynecologist at Atlantic Women’s Health in Plymouth, Mass.

Questions or comments should be directed to the editor at: reni.gertner@lawyersweekly.com