Testimony often strays from truth to fiction

January 10, 2008



Marvin! Where are you off to? You're supposed to chair the Morbidity & Mortality conference."

"Gotta testify in a malpractice case today. Dr. Brown will cover."

"Are you being sued? Is that why we haven't seen much of you lately?"

"No, I've been doing expert witness testimony. I've got a case where a guy had a stroke and can no longer see the color blue."

"Blue? What could you possibly have to do with it? You're a colon surgeon. "

"Nonetheless, an expert in the eyes of the court. And if a radiologist hadn't missed this guy's stroke in the blue cortex, he could still be enjoying the ocean from his Hampton beach house."

"Blue cortex? What are you talking about?"

"I review all my patient's CTs. I can read CT as well as anyone."

"Are you sure this has nothing to do with your new Mercedes or beach villa in St. Croix?"

"They merely testify to the fact that I am a staunch defender of patient plaintiffs.

"Well, I'm glad to hear that, since in the M&M conference we're going to discuss that cell phone you left in a patient. She now has an irritable colon because it keeps getting telemarketing calls."

"And I'm paying the roaming fees! There is no literature that cell phones are dangerous."

"That's not what the ob/gyn department will be presenting, but I'm sure you can find an 'expert witness' to defend you when it goes to court."

"Ungrateful woman. Excuse me, but I have to call my cell phone."

Fact versus fiction: Which would you choose to believe? Surprisingly, you choose fiction!

Or so suggests research by Ralf D. Sommerfeld in the Proceedings of the National Academy of Sciences.

Through some alternating roles of donor and recipient and truth and gossip, researchers discovered subjects were more influenced by false gossip over actual fact. Switch gossip for false expert testimony, and the significance is clear.

Innumerable cases show how financial incentives have lured false or slanted testimony from medical experts hired by tobacco companies to deny any association between smoking and cancer or those hired by oil companies to deny global warming-all in the face of massive peer-reviewed evidence to the contrary. Such testimony, even when false and contradicted by facts, can influence a jury. Lawyers know it is extremely successful, and they count on it.

Responding to the explosion of junk science and use of deceptive hired gun expert witnesses, the U.S. Supreme Court ruled in 1993 in Daubert v Merrell Dow Pharmaceuticals that judges must serve as gatekeepers to evaluate expert testimony along scientific principles. The Supreme Court established four criteria for a decision to be scientifically valid: falsifiability, error rate, general acceptance, and peer review/publication.

The only problem is that a survey of 400 judges reveals that most didn't understand the guidelines ("Asking the gatekeepers: a national survey of judges on judging expert evidence in a post-Daubert world," Law and Human Behavior, October 2001).

Further complicating this issue, the AMA News reported on May 1, 2006, "In a unanimous opinion, the Appellate Division of the [New York] Supreme Court . . . said experts did not need to show peer-reviewed medical literature to prove that their medical opinion was accepted in the scientific community." This appears in conflict with "the Frye standard derived from a 1923 Federal Court ruling that established that novel scientific evidence presented in court must 'have gained general acceptance' in the relevant scientific community."

Tort reform has stalled over economic caps, so reformers have taken another approach, trying to eliminate frivolous lawsuits, junk science, and deceptive expert witnesses. Twenty states now have laws requiring another physician in a substantially similar practice to sign an affidavit that a suit has merit to initiate a malpractice lawsuit; unfortunately, four states allow this to be done anonymously.

The American Medical Association and Federation of State Medical Boards state that expert testimony is the practice of medicine and that physicians can be disciplined for fraudulent testimony. Twenty state medical boards have established similar positions, but only four states have actual laws to punish fraudulent testimony.

The American Association of Neurological Surgeons has had an expert review program in place for 24 years, and 97% of those disciplined have been plaintiff experts! I wonder if they ever went after the expert in the case of the psychic who lost her powers after an MRI and won $1 million.

A study in the March/April 2007 issue of Health Affairs by the University of Tennessee Health Science Center has shown that expert witness regulations have had a more significant impact on decreasing claims than other reform measures. What else is being done?

The Joint Commission on Accreditation of Healthcare Organizations has stated that the liability crisis serves as a roadblock to quality healthcare for patients and has advocated court-appointed independent expert witnesses.

The Medical Society of Chattanooga and Hamilton County, in cooperation with the Chattanooga Bar Association and a circuit court judge, in October 2005 established a pilot program that allows a judge to call upon an independent expert witness to advise the judge on conflicting testimony and its admissibility to avoid confusion of jurors. Others have proposed taking the financial incentive away by having an independent rotating panel of expert witnesses that are employed by state medical boards to replace hired guns.

Plaintiff lawyers have countered that there is no need for reform because a flawed or fraudulent expert witness will be exposed during cross-examination. But jurors-even judges-with their limited knowledge of complex medical issues, rarely have the expertise to differentiate between what is true and false. False information often will influence people even when exposed by the facts-just look at the current political campaigns.

Rather than focusing our tort reform on economic caps, we should be looking at expert witnesses. When you are being sued, you don't need a cell phone in your colon to make it irritable. An expert witnesses can do it quite nicely.

Dr. Trefelner is a radiologist and cofounder of NightShift Radiology. He invites comments by e-mail at ericxray@pacbell.net or fax at 650/728-5099.