ACR ethics committee scrutinizes expert testimony

December 12, 2003

A program developed by the American College of Radiology will give its members the opportunity to file complaints and seek sanctions when they believe that a fellow member has given inaccurate or biased testimony in a medical malpractice proceeding.

A program developed by the American College of Radiology will give its members the opportunity to file complaints and seek sanctions when they believe that a fellow member has given inaccurate or biased testimony in a medical malpractice proceeding.

Developed over the course of the last two years by the ACR's Committee on Ethics, the program reflects a growing movement by professional medical associations to crack down on physicians who as expert witnesses provide misleading testimony in medical malpractice cases.

Medical societies received a legal green light to take action against these so-called nefarious witnesses last year, when a Chicago federal court upheld the legality of the American Association of Neurosurgeons' decision to suspend several members for engaging in clinically questionable courtroom behavior.

"The court said that more and not less discipline of nefarious expert witnesses is needed," said Dr. Leonard Berlin, a legal columnist for the American Journal of Roentgenology and a member of the ACR Committee on Ethics.

Radiologists who wish to challenge the testimony delivered in court by a fellow member of the ACR will be able to lodge a complaint, which will be reviewed by a 10-member ethics committee. The committee may obtain transcripts of the court testimony, images used for the case, and patient records, and may also rely on outside experts to review evidence.

If the committee finds the testimony inaccurate or biased, it can censure, suspend, or expel the offender from the ACR. A radiologist who is censured remains anonymous, but the names of those who are suspended or expelled from the college will go into the National Practitioner Database.

"ACR bylaws stipulate that testimony should be scientifically accurate, of the prevailing opinion, and unbiased," said Dr. Murray Janower, chair of the Committee on Ethics.

The first such proceeding took place in October. A complaint had been lodged that testimony in a case was medically wrong, said William F. Shields, ACR general counsel. The experts and the committee concluded that the testimony was acceptable.

"It was a difference of professional opinion and not an ethics violation," Shields said.

Although the Committee on Ethics has existed for some time, it had no formal process for dealing with ethics violations. The college initiated the process not because of expert witness complaints, but to deal with other issues such as felony convictions or inappropriate work-related behavior, Shields said. It just happened that the first complaint involved an expert witness.

The ACR created its peer-review template by studying the AANS and other groups that have set up similar judicial review boards. Hard data showing that these programs have reduced malpractice costs are not yet available, but anecdotally, they seem to have an effect, said Dr. George A. Fueredi, a vascular and interventional radiologist with Great Lakes Radiologists in Wisconsin and an occasional expert witness.

Fueredi described an AANS case in which a defense lawyer reminded a neurosurgeon expert witness that he could be brought up for peer review. The expert changed his testimony.

Deciding between ignorance and purposely false testimony is difficult, Janower said. An expert witness might actually believe in what he or she says. But "prevailing opinion" is the operative phrase, he said.

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