TECHNICAL REPORT

Expert Participation in Civil and Criminal Proceedings Sandeep K. Narang, MD, JD, FAAP, a Stephan R. Paul, MD, JD, FAAP, b, c COMMITTEE ON MEDICAL LIABILITY AND RISK MANAGEMENT

The interests of the public and both the medical and legal professions abstract are best served when scientifi cally sound and unbiased expert witness is readily available in civil and criminal proceedings. As members of the medical community, patient advocates, and private citizens, pediatricians have ethical and professional obligations to assist in the civil aDepartment of Pediatrics, West Virginia University, Morgantown, West Virginia bFulbright-Nehru Scholar and Division Head of Child Abuse and criminal judicial processes. This technical report explains how the Pediatrics, Ann and Robert H. Lurie Children's Hospital of Chicago; role of the expert witness differs in civil and criminal proceedings, legal and cAssociate Professor of Pediatrics, Feinberg School of Medicine, Northwestern University, Chicago, Illinois and ethical standards for expert , and strategies that have been Drs Paul and Harang were each responsible for all aspects of writing employed to deter unscientifi c and irresponsible testimony. A companion and editing the document and reviewing and responding to questions policy statement offers recommendations on advocacy, , research, and comments from reviewers and the Board of Directors. qualifi cations, standards, and ethical business practices all aimed at This document is copyrighted and is property of the American Academy of Pediatrics and its Board of Directors. All authors have improving expert testimony. fi led confl ict of interest statements with the American Academy of Pediatrics. Any confl icts have been resolved through a process approved by the Board of Directors. The American Academy of Pediatrics has neither solicited nor accepted any commercial involvement in the development of the content of this publication. BACKGROUND The guidance in this report does not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking The American Academy of Pediatrics (AAP) first articulated policy on into account individual circumstances, may be appropriate. 1 appropriate medical expert witness testimony in 1989 and was among All technical reports from the American Academy of Pediatrics the first medical specialty societies to do so. The statement was revised in automatically expire 5 years after publication unless reaffi rmed, 19942 to incorporate additional provisions on expert witness testimony revised, or retired at or before that time. guidelines from the Council of Medical Specialty Societies. 3 A 2002 DOI: 10.1542/peds.2016-4122 revision outlined responsible practices that should follow to Address correspondence to Sandeep K. Narang, MD, JD. E-mail: safeguard their objectivity in preparing and presenting expert witness [email protected] testimony. 4 Key legal concepts were explained, and the role of the expert PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275). witness in the litigation process (pretrial and ) was described. A Copyright © 2017 by the American Academy of Pediatrics 2009 iteration expanded the requirements and qualifications for experts FINANCIAL DISCLOSURE: The authors have indicated they have no testifying in civil and criminal cases, the latter primarily relating to cases fi nancial relationships relevant to this article to disclose. involving alleged child abuse and/or neglect.5 The importance of expert FUNDING: No external funding. witness testimony in the process of determining civil liability, child safety, or criminal culpability and its unique significance in pediatric cases also was stressed. This technical report provides the evidentiary To cite: Narang SK, Paul SR, AAP COMMITTEE ON MEDICAL basis on which the recommendations found in its companion policy LIABILITY AND RISK MANAGEMENT. Expert Witness Participation statement 6 of the same title are based. The 2016 policy statement in Civil and Criminal Proceedings. Pediatrics. 2017;139(3): e20164122 replaces the previous policy statement. This technical report expands

Downloaded from www.aappublications.org/news by guest on October 2, 2021 PEDIATRICS Volume 139 , number 3 , March 2017 :e 20164122 FROM THE AMERICAN ACADEMY OF PEDIATRICS the information on how testifying in issue to qualify as an expert. FRE 702 professional organizations or state child abuse cases differs from doing authorizes a to admit expert medical boards, it is necessary to so in civil proceedings, bolsters the testimony into if it assists determine whether the provision requirements for expert testimony, the or the judge to “understand of expert testimony is the practice and provides new guidance on ways the evidence or to determine a in of medicine. In 1998, the House of to prevent and censure irresponsible issue.”7 FRE 703 permits a qualified Delegates of the American Medical testimony in medical liability expert to give testimony based on data Association adopted the position proceedings as well as child abuse of others, provided that “experts in that the provision of expert witness cases. the particular field would reasonably testimony should be considered the rely on those kinds of or data in practice of medicine and should be This technical report applies to 7 forming an opinion on the subject.” 8 medical expert witness consultation subject to peer review. Adopting FRE 704 permits an expert to opine or testimony in all legal venues this approach not only makes on the ultimate factual issue. In a (including pretrial consultations, civil medical licensure a requirement for malpractice case, testimony of an suits, criminal legal proceedings, or providing expert witness testimony, expert witness differs from that of other legal proceedings) in which but also puts physicians on notice other witnesses. “Witnesses of fact” attorneys ask pediatricians, pediatric about potential actions against their (those testifying because they have medical subspecialists, or pediatric medical license for giving false, personal knowledge of the incident or surgical specialists to provide their biased, or unscientific testimony. 9, are persons involved in the ) expert opinions or testimony. 10 Expectedly, not all have typically restrict their testimony to the agreed that medical expert witness facts of the case at issue. The expert testimony is engaging in the practice witness is given more latitude. The DEFINITION OF EXPERT WITNESS of medicine. 11 However, in one expert witness is allowed to compare , the Seventh Circuit The expert witness plays an the applicable standards of care with essential role under the US system of the facts of the case and interpret of Appeals clearly stated that the . Courts rely on expert whether the evidence indicates a provision of medical legal testimony witness testimony in most civil and deviation from the standard of care. is concomitant with the practice of 12 criminal cases to explain scientific Without the expert’s explanation of medicine. matters and provide their opinions the range of acceptable diagnostic to jurors and . Standards of and treatment modalities within the admissibility for expert testimony standard of care (see the Determining MALPRACTICE LIABILITY FOR vary depending on state and federal the Standard of Care section) and NEGLIGENT EXPERT TESTIMONY rules of procedure and evidence. interpretation of medical facts, Although most state conform to may not have the technical expertise It is unclear whether there may be both the Federal Rules of Procedure needed to distinguish malpractice (an financial risks to experts and Federal Rules of Evidence (FRE), adverse event caused by negligent or who testify negligently in malpractice some do not.7 The same testimony “bad care”) from maloccurrence (an matters. 13 Because clients are from a given expert witness, therefore, unavoidable adverse event or “bad entitled to sue their attorneys for might be admissible in some state outcome”). malpractice, it is not unreasonable courts but not in federal court and vice In a criminal case, however, FRE that malpractice liability can attach to versa. Qualifying to be an expert is 704 limits the expert. Although the governed by statutory and evidentiary medical expert testimony. However, expert may opine on a factual issue, rules. In malpractice cases, statutory the malpractice litigation against the expert may not opine “about rules may vary from jurisdiction expert witnesses to date suggests whether the defendant did or did not to jurisdiction about whether an that the courts generally will grant have a mental state or condition that expert must be of the same specialty immunity from civil liability to constitutes an element of the 14 as the defendant. FRE 702 provides these defendants. Nonetheless, charged.” 7 basic background credentials for an pediatricians, pediatric medical expert, stating that an expert must subspecialists, and pediatric surgical be qualified by “knowledge, skill, specialists contemplating serving PROVIDING EXPERT TESTIMONY AS THE 7 as expert witnesses may want to experience, training, or education.” PRACTICE OF MEDICINE In both civil and criminal cases, contact their professional liability the expert, nevertheless, must For an expert witness to be insurance carrier to ascertain the demonstrate to the judge sufficient censured for unethical or need for additional coverage for knowledge and expertise about the unreliable scientific testimony by these activities.

Downloaded from www.aappublications.org/news by guest on October 2, 2021 e2 FROM THE AMERICAN ACADEMY OF PEDIATRICS COMPENSATION FOR EXPERT Dow Pharmaceuticals Inc. This admit or exclude expert testimony TESTIMONY standard is used in federal courts (ie, defers to the trial judge’s rulings Some experts can significantly and has been adopted by many unless overtly erroneous). Critics increase their income by providing states for use in state courts. Under have voiced concern over judicial expert medical testimony. Asking Daubert, the judge is tasked as the discretionary power in admitting for excessive compensation may gatekeeper for determining whether experts, because some judges lack be considered unethical. It is expert testimony is both relevant and the requisite scientific or medical appropriate to ask for compensation reliable. The Daubert court offered background to interpret potentially 21 that is commensurate with the 4 guidelines a judge may, but need complex medical issues. not, use in assessing the reliability of expertise, time, and effort required Although Daubert has superseded testimony: for preparing and providing Frye in most , some responsible testimony. Common 1. whether the expert’s theory or jurisdictions still use the Frye factors considered in valuing expert technique can be (or has been) standard. Frye provides that expert testimony include calculating the tested (aka, “falsifiability”); opinion based on a scientific amount earned if the pediatrician, 2. whether the theory or technique technique is admissible only where pediatric medical subspecialist, or has been subjected to peer review the technique is generally accepted pediatric surgical specialist saw or publication; as reliable in the relevant scientific patients in the office or performed community. surgery that day; the difficulty in 3. the known or potential error rate preparing the case; and the dearth of of the theory; and Just when a scientific principle or appropriate experts in a specific field. 4. whether there is general crosses the line between Additionally, written expert witness acceptance in the relevant the experimental and demonstrable agreements often include a fee scientific community. stages is difficult to define. Somewhere in this gray zone, the schedule for depositions and in-court The latter guideline, “general testimony, a cancellation policy, evidential force of the principle must acceptance,” is at the core of the Frye be recognized, and although the out-of-pocket expenses (eg, travel standard of expert testimony. This costs, car rental, hotel, food, parking, courts will go a long way in admitting standard, established more than 80 experimental testimony deduced etc), research, printing, postage and years ago, is still the standard used in express packages, preparation time, from a well-recognized scientific some states. Other states use a hybrid principle or discovery, the deduction the retaining ’s fee payment of the Daubert and Frye standards. responsibility, and interest for made must be sufficiently established overdue accounts. 15 Under the , to have gained general acceptance trial judges are to focus on the in the particular field in which it It is unethical to charge unreasonable reasoning or scientific validity of belongs. 16 rates or to exaggerate the time the methodology, not the conclusion Attorneys may request experts to required to prepare expert generated. Once the judge permits state that their testimony is being testimony. It is also unethical for expert testimony to be admitted given “within a reasonable degree of remuneration to be contingent on the into evidence, it is the jury’s role medical certainty.” 22 This rubric is outcome of the case. to determine the “weight” (or not universally defined and has been importance) to be ascribed to that interpreted differently by different testimony. The Daubert court noted courts. 23 Also, it is not a standard LEGAL AND ETHICAL STANDARDS OF that challenges to questionable TESTIMONY required in all jurisdictions. 24 Ideally, testimony are to be contested expert witnesses are not advocates The judge acts as the gatekeeper in via cross-examination and the for the side that retains them. Rather, deciding the qualifications of the presentation of contrary evidence. they are advocates for their unbiased expert as well as the and The effect of the Daubert decision in opinion, which is derived from facts reliability of the testimony. The 2 reducing “junk ” from being and evidence-based medicine. main standards used by judges in admitted into evidence continues determining relevance and reliability to be debated. 20 The importance The pivotal factor in civil and are referred to as the Daubert and of standards for admissibility of criminal cases is the integrity of Frye standards. 16, 17 The Daubert expert testimony at the trial level the expert witness testimony. standard (expanded in later cases is underscored by the fact that Reliable, objective, and accurate, known as Joiner 18 and Kumho 19) was appellate courts can only consider it provides truthful analysis of the established by the US Supreme Court an “abuse-of-discretion” standard in medical information. Regrettably, in the 1993 case Daubert v Merrell reviewing a trial judge’s decision to not all medical experts testify within

Downloaded from www.aappublications.org/news by guest on October 2, 2021 PEDIATRICS Volume 139 , number 3 , March 2017 e3 these boundaries. 25 In a study experts should refrain from “taking 3. (a compensable injury); of expert witnesses in one side or the other,” and avoid and against neurologists over a 10-year espousing hypotheses that are 4. a legal causal connection between period, significant errors of fact unsupported by strong, evidence- the violation of the standard of or interpretation and incorrect based medical literature. The ethics care and the injury. statements were noted to be of responsible expert testimony common. 26 The medical community require pediatricians to be objective In a case, has long been aware that not all assessors and conveyors of medical experts may be asked to provide experts testify within scientific information. Clearly, pediatrician an opinion about one or all of these standards and ethical guidelines. 27 expert witnesses need to approach elements of a malpractice case. It is However, more research is needed their opinion on the diagnosis of important not to testify about all of to determine how pervasive child abuse with the same thoughtful, these elements if they are not within improper expert testimony is in intelligent, and objective approach the pediatrician’s area of expertise the legal process. It seems that a that they bring to any other (eg, it may not be appropriate for a small cadre of physicians provide diagnosis. pediatrician to testify about whether a disproportionate percentage of a cesarean delivery should have been expert testimony in cases and that performed to prevent a brachial there may be suboptimal expertise LEGAL CONCEPTS AND PROCESSES plexus injury). and possible bias in testimony. 28 Besides negligence, a medical Defi nition of Medical Malpractice A study of neurologic birth injury malpractice lawsuit also may include an allegation of insufficient informed litigation found that the majority of Medical malpractice is based consent. Informed consent includes a expert testimony in this controversial on concepts drawn from discussion with a noncoerced patient area is provided by a group of and law. It is commonly or parent who has decision-making less than 100 physicians. These understood as liabilities arising from capacity. 34 The discussion should physicians served in nearly 90% of the delivery of medical care. Causes include the benefits versus the risks the sampled and consistently of action can be based on negligence, of proposed and alternative tests for the same side (eg, plaintiff or insufficient informed consent, or treatments and the option of no defendant). 29 intentional misconduct, breach of a treatment. In some jurisdictions, contract (ie, guaranteeing a specific Similar concerns have pervaded an informed consent claim is a 30 therapeutic result), defamation, the child maltreatment arena. derivative of a negligence claim divulgence of confidential Child maltreatment cases, whether and requires that a physician have information, or failure to prevent adjudicated in the civil or criminal done something inconsistent with foreseeable injuries to third parties. realm, can be emotionally charged prevailing practice standards. In cases. In some circumstances, Medical negligence is the other jurisdictions, the lack of pediatricians have forged strong predominant theory of liability informed consent is a claim discrete relationships with their patient in medical malpractice actions. from medical malpractice, and a families. A natural consequence is According to Black’s Law Dictionary, valid claim may be alleged whether that pediatricians develop a strong negligence is defined as “the failure the physician gave appropriate care. emotional bond to a patient’s family to exercise the standard of care Inadequate informed consent may and may permit that emotional that a reasonably prudent person be the basis of a civil tort even if bias to confound the diagnostic would have exercised in a similar the care provided by the physician decision-making process. 31 Given situation.” 33 was consistent with the standard the significant outcomes of civil and of care. When insufficient informed criminal proceedings in these cases, To establish negligence, the plaintiff consent is an aspect of the case, the it is important to remain especially must prove all of the following expert needs to be familiar with vigilant of any emotional bias in the elements: the standards of informed consent assessment of child maltreatment in the particular state involved. cases. 1. the existence of the physician’s duty to the plaintiff, usually based There are 2 main standards of Secondary to bias and other factors, on the existence of the physician– providing informed consent that experts have proffered various patient relationship; have been implemented by either unproven theories as valid scientific judicial decision or : the diagnoses in child maltreatment 2. the applicable standard of care “reasonable-patient” standard and cases, especially in abusive head and its violation (ie, breach of the the “reasonable-physician” standard trauma cases. 32 When testifying, duty); (also known as “community” or

Downloaded from www.aappublications.org/news by guest on October 2, 2021 e4 FROM THE AMERICAN ACADEMY OF PEDIATRICS “professional” standard). 35 In the resources in rural and underserved encompasses their opinion on the former standard, the physician must communities or for variances in standard of care to the exclusion disclose the treatments and risks access to specialized of other acceptable or reasonable that a reasonable patient/person facilities. Thus, some jurisdictions diagnostic or treatment options would want disclosed to make an continue to use a “locality” available at the time of the incident. informed medical decision. In the standard—a standard in which the latter standard, the physician must physician is held to the standards Medical Error or Medical Negligence disclose the treatments and risks of like physicians in the same (or The Institute of Medicine’s sentinel that a reasonable physician would similarly-situated) community. 39 report on medical errors, To Err disclose to the patient. In both Along that vein, some states require Is Human: Building a Safer Health circumstances, the jury or out-of-state experts to demonstrate System, 41 provides a helpful determines whether the standard familiarity with the “local” standard framework for understanding the has been satisfied, and expert of care. 40 many factors involved in medical testimony is usually helpful. In some interventions and how their circumstances in some jurisdictions, Role of the Expert Witness in permutations can affect patient failure to obtain informed consent Malpractice Proceedings outcome. Whenever a medical can result in a claim of “battery” In medical liability cases, the role of intervention is undertaken, several (intentional, unauthorized touching the expert witness is often twofold: outcomes can occur: the patient’s of a person). 36 condition can improve, stay the same, 1. to establish the standard of care or deteriorate. These same outcomes Determining the Standard of Care applicable to the case at issue; and are possible even when the medical treatment is performed properly. In the law of negligence, the standard 2. to opine as to whether there A negative outcome alone is not of care is generally thought of as “that has been any deviation from sufficient to indicate professional degree of care which a reasonably acceptable standards. negligence. It is often necessary to prudent person should exercise in When care has been deemed be prepared to educate the trier same or similar circumstances.” 31 If “substandard,” the expert witness of the case (either jury or judge) the defendant’s conduct falls outside may be asked to opine whether that that negligence cannot be inferred the standards, then he or she may deviation from the standard of care solely from an unexpected result, a be found liable for any damages that could have been the proximate (ie, bad result, failure to cure, failure to resulted from this conduct. legal) cause of the patient’s alleged recover, or any other circumstance injury. In medical negligence cases, the that shows merely a lack of success. defendant’s medical decision-making Because courts and juries depend and practice are compared with on medical experts to make medical the applicable standard of care. standards understandable, the In a medical malpractice case, the Generally, this is understood to be testimony should be clear, coherent, plaintiff bears the burden of proof the “reasonable and ordinary care, and consistent with the standard and must convince a jury that all skill, and diligence” that physicians applicable at the time of the incident. elements of a malpractice action and surgeons “in good standing and Although experts may testify as to have been met by a preponderance of in the same general line of practice” what they think the most appropriate the evidence. Black’s Law Dictionary ordinarily exercise in similar standard of care was at the time defines preponderance of the circumstances. 37 Many courts have of occurrence, alternatives to this evidence as “the most convincing held that the increased specialization standard of care may be raised force” or “superior evidentiary of medicine and the establishment during direct testimony or under weight.” 33 Typically, the jury is of national board certifications cross-examination. The standard instructed to find for the party are more significant factors than of care needs to be expressed that, on the whole, has the stronger geographic differences in establishing broadly enough, such that it allows evidence, however slight the edge the standard of care. 38 These courts for variability in clinical actions/ might be.” 31 Traditionally, this contend that board-certified medical decisions. It is important that expert is thought of as “more than 50% or surgical specialists should adhere witnesses not consider new evidence, likely.” Thus, jurors in a medical to standards of their respective guidelines, or studies that were not malpractice case must be persuaded specialty boards (ie, a national available to the treating physicians that the evidence presented by standard). However, one criticism of at the time of the occurrence. Expert the plaintiff is more plausible than this specialty-based standard is that witnesses should not define the any counterargument offered by it does not account for variances in standard so narrowly that it only the defendant. 42 The plaintiff and

Downloaded from www.aappublications.org/news by guest on October 2, 2021 PEDIATRICS Volume 139 , number 3 , March 2017 e5 attorneys will present remember that although the burden unconstitutional, claiming that their respective experts, each side of proof in criminal cases is beyond legitimate plaintiffs may be denied hoping their witnesses will appear a reasonable doubt, that is not the access to the legal system solely on more knowledgeable, objective, and standard by which pediatricians procedural, rather than substantive, credible than their counterparts. are required to reach their medical grounds. 44 diagnoses. As in civil cases, In criminal cases, the Some states use review panels to pediatricians are required to reach bears the burden of proof, and guilt prescreen medical malpractice their diagnoses by medical standards of a particular crime must be proven cases. These panels typically of diagnostic sufficiency, not legal by a much higher standard: beyond a consist of a physician, attorney, standards of proof. Attorneys may reasonable doubt. What constitutes and lay representative. However, attempt to confuse pediatricians "reasonable doubt" is a nebulous state laws that govern the timing about this degree of sufficiency determination that within the and process for review panels can during cross examination. province of the jury/trier of fact. 31 vary. Depending on the state, the Some states and federal jurisdictions As mentioned previously, because review can take place before or after have held that constitutional due of the gravitas of the civil and the claim has been filed. Review process requires a jury instruction criminal outcomes in these types panel findings can be binding or explaining what reasonable doubt is; of cases, pediatricians who are nonbinding. The opinion of the some have not. inexperienced in evaluating children review panel may or may not be suspected of abuse or neglect need admissible should the matter Role of the Expert in Criminal Cases to be cautious of providing expert proceed to litigation. In cases testimony in those matters. The involving newborn infants with Pediatricians often serve as experts new subspecialty of child abuse neurologic impairment, experts in criminal cases of alleged child pediatrics, acknowledged by the AAP may also be called to give testimony abuse and neglect. The types of and certified by the American Board in states where Neurologic Injury criminal child maltreatment cases of Pediatrics, sets high standards for Compensation Acts exist (eg, Florida, in which a pediatrician may be professional and conduct 45 New York, 46 and Virginia 47) to called to provide expert testimony in this area. However, pediatricians affirm whether the infant meets include abusive head trauma, child who are not board certified in the standards of compensability of sexual abuse, starvation/torture, child abuse pediatrics still may be that statute. The future role of these intentional burns, abdominal called to testify as experts in cases panels has been questioned, 40 yet trauma, multiple fractures/battered of abuse and neglect, especially if they remain in effect in 14 states.48 child syndrome, and Munchausen they have special knowledge and/ syndrome by proxy/medical child Those seeking of expert or extensive experience in the abuse. In criminal cases, unlike civil witness testimony have noted that field. If a general pediatrician feels cases, the prosecution must prove the expert opinions provided during uncomfortable in testifying in these the case beyond a reasonable doubt. this early stage of the legal process cases, he or she may wish to consult The pediatrician’s involvement are subject to even less scrutiny and with subspecialists in child abuse may include pretrial hearings, in accountability than later testimony pediatrics. which the relevance and reliability provided later. Critics believe that of proffered testimony will be the lack of oversight of experts Pretrial Expert Testimony evaluated (also known as Daubert during pretrial reviews has allowed or Frye hearings). In these cases, In medical malpractice, expert too many nonmeritorious cases the pediatrician may be called on to witness testimony may be used to to proceed, thereby defeating the educate the court about recognizing evaluate the merits of a malpractice purpose of having pretrial reviews. 49 the presence of injuries, the general claim before filing legal action. biomechanics of these injuries, Some states have enacted laws Expert Witnesses and the Discovery Process likely ways particular injuries may requiring that a competent medical present, date of injury, relevant professional in the same area of The purpose of “discovery” is to medical diagnoses on the differential expertise as the defendant review the identify all the facts related to the diagnosis, laboratory and radiologic claim and be willing to testify that case. Discovery is applicable to both results, and, ultimately, the opinion the standard of care was breached. 43 fact witnesses and expert witnesses of whether the medical diagnosis of This may require the filing of an and occurs in both civil and criminal child physical or sexual abuse was affidavit or certificate of merit that cases. The deposition of key fact reached or not. It is important for malpractice has occurred. Some witnesses is an important facet of pediatricians to understand and states have deemed this system the discovery process in malpractice

Downloaded from www.aappublications.org/news by guest on October 2, 2021 e6 FROM THE AMERICAN ACADEMY OF PEDIATRICS cases. A deposition is a witness’s pretrial ). During this period altruistic to the jury, but this is an recorded testimony given under of questioning, the expert will be inappropriate outcome without due oath while being questioned by asked about his or her educational regard to the physician’s culpability attorneys for the parties in the case. background, current practice, board for the injury. Objective expert Throughout the deposition process, certifications, any relevant research witness testimony is needed to attorneys gather information on what or publications, membership and prevent such unjust outcomes. fact witnesses will say and assess activity in professional societies, the relative effectiveness of their and previous court recognitions testimony as well as their demeanor as an expert. The expert must be IMPROVING THE QUALITY OF EXPERT (eg, clarity, believability, arrogance, stringently honest about his or TESTIMONY sincerity). Crucial decisions in her credentials because they will determining the next phase of the be carefully checked by the “other Various branches of organized case (eg, seeking a settlement, side.” In addition, the expert could medicine and some state medical going to trial, moving for dismissal/ be charged with if he or she licensure boards have implemented summary ) often are based is not truthful under oath. The court programs to help curb unreliable 53 on the strength of the testimony. may delve more closely into the medical expert testimony. specifics of the expert’s rationale for There are multiple strategies for Experts Can and Often Will Be his or her opinion. Because expert regulating expert witness testimony. Deposed opinions presumably carry greater Historically, the principle of witness A discovery alternative to deposition weight in the minds of the jury than immunity has shielded experts from testimony is the expert’s written lay opinions or fact witnesses, this legal reprisal that is based on the report. Written reports of the expert scrutiny offers the court some greater nature of their testimony. To bring typically are shared between the assurance of reliability in the opinion greater accountability to expert parties before trial. However, some to be offered before that designation witness testimony in malpractice states do not require disclosure of of “expert.” cases, some legal authorities the identity of the expert or even have sought to have a distinction disclosure of the report. Many drawn between expert witnesses Unique Factors in Pediatric Cases 54 medical malpractice lawsuits that and fact witnesses. These critics postulate that because experts testify are resolved in favor of the plaintiff In cases that reach trial, some voluntarily and receive significant typically are settled during or at the authorities note that jurors generally compensation for their services, conclusion of the discovery phase. In can be effective in assessing expert general witness immunity should not criminal cases, discovery of expert testimony. 50 However, in civil apply to them. opinion usually is accomplished by cases involving children, some pretrial interview with the expert commentators have noted that witness or by an expert witness’ other aspects of the proceedings, Education written report. It is helpful when such as sympathy for the child, the Continuing medical education expert witnesses are willing to gravity or severity of the injury, or about the expert witness process is be available and to discuss their altruistic motivations, may unduly needed at all levels of the pediatric opinions with both sides in advance 51,52 influence triers of the case. For experience. Educating pediatric of their testimony. It is not advisable example, a jury might be influenced residents to be cognizant of the that physicians engage in the practice by the needs of a family with an ethical obligation of pediatricians to of having attorneys write their infant with neurologic impairment participate in the legal process and reports; however, in the unusual or a ventilator-dependent teenager. have a rudimentary understanding circumstance that this does occur, Undoubtedly, patients who of the guidelines of medicolegal physician experts should read that experience long-term consequences participation is important. statement carefully to verify that they of injuries attributable to medical agree with it fully. negligence should be appropriately In 2006, the AAP graduating and promptly compensated. resident survey revealed that only Expert Testimony at Trial However, the use of malpractice 25% of residents reported that Before providing expert testimony, awards to compensate patients for their training program provided the medical expert may experience adverse outcomes not caused by adequate education on the expert additional scrutiny of his or her medical negligence is neither the witness process. 28 Medical training qualifications and bases for his or intent nor the proper usage of the programs have been criticized for her expert opinion (ie, , a system. Assisting families of children failing to adequately respond to these Daubert or Frye hearing, or other with disabilities or injuries may seem results. 55

Downloaded from www.aappublications.org/news by guest on October 2, 2021 PEDIATRICS Volume 139 , number 3 , March 2017 e7 One strategy for improving 5. complete an ASGS-approved Legal Challenges education on this topic is to use expert witness course that In one legal action, in 1991, a false or unscientific testimony from includes ethical guidelines, neurosurgeon, attempted to enjoin closed cases for teaching purposes. professional responsibility, and the AANS from charging him with This approach can be particularly a thorough review of the tenets unprofessional conduct in relation effective when biased or false of impartial expert witness to malpractice testimony. 60 He testimony presumably played an testimony; have 2 letters of asserted that only the courts were important role in the outcome of recommendation attesting entitled to determine whether the case. Another strategy is the use to the competency, honesty, expert testimony was appropriate. of mock trials or simulated witness professional, ethical, and moral The case was brought in New Jersey testimony scenarios in either the character of the expert witness and appealed all the way to the New graduate medical education process applicant; and be in good standing Jersey Supreme Court. In dismissing or continuing medical education in the local and or medical the case, the New Jersey Supreme venues. As opposed to a more classic community; and, Court found no impropriety on the didactic method of learning, these part of the AANS and ruled that experiential learning methods have 6. have 50 hours of category I its procedural rules afforded its been reported by learners to have continuing medical education members with appropriate due a greater impact and are associated every 2 years. process. In another action, the with higher memory retention. 56 Professional Conduct Committee Professional Medical Society Other specialty organizations have suspended another member for Credentialing, Reviewing, and endeavored to regulate the quality irresponsible testimony in a medical Enforcing Expert Testimony of expert testimony in different malpractice case. The member manners. 58 One organization that filed suit in the US District Court Despite the critical importance of the has been more progressive in the in Chicago, alleging that the AANS expert witness, no uniform standards regulation of expert testimony program violated public policy on the credentialing of experts by its members is the American by discouraging physicians from currently exist. One specialty society Association of Neurologic Surgeons testifying for plaintiffs in medical has initiated a process to certify (AANS). In 1983, the AANS initiated malpractice cases. The District Court experts. 57 The American Society of a Professional Conduct Committee granted summary judgment to the General Surgeons (ASGS) has defined whose originating purpose was AANS, and the case was appealed to certification requirements for its to evaluate potential violations the Seventh Circuit Court of Appeals. members who desire to be “expert of the organization’s code of In the Seventh Circuit Court’s witnesses.” The ASGS has outlined the ethics. 59 Around the same time, decision in favor of the AANS, Judge following minimal requirements for the AANS adopted guidelines on Richard Posner stated that “this its members: the provision of fair and impartial kind of professional self-regulation 1. be a member in good standing in expert testimony. Thus, although furthers, rather than impedes the 11 the ASGS; not its original design, the conduct cause of .” 2. abide by the oath of ethics of the committee has been a powerful The AANS Professional Conduct ASGS, the fellowship pledge of the regulator of and enforcer against Committee is codified in the American College of Surgeons, the negligent expert testimony. association’s Procedural Guidelines of principles of medical ethics of the To further this objective, the the Profession Conduct Committee. 58 American Medical Association, and Professional Conduct Committee The process has evolved its the oath of Hippocrates; adopted a set of guidelines allowing procedures and practices over the evaluation of unethical testimony the past 30 years. Currently, its 3. have comparable educational, in a manner that provided both members are appointed by the training, and practice experience justice and due process. Aware of AANS president and ratified by the in the same aspects of general the potentiality of legal action by Committee. If a member surgery as the defendant/plaintiff members against the AANS, the work of the AANS files a complaint against physician; of the committee continued, deeming another member, the complaint is 4. have an active surgical practice that the problems of ethics violations publicized to the respondent, who and or teaching experience within and irresponsible medical legal is entitled to submit his or her own 5 years of the date of the event testimony outweigh the potential response. The committee reviews all giving rise to the medical–legal legal expenses associated with these documents and decides whether to issue; challenges. further pursue the issue. Cases are

Downloaded from www.aappublications.org/news by guest on October 2, 2021 e8 FROM THE AMERICAN ACADEMY OF PEDIATRICS dismissed ∼35% of the time. The potential of future lawsuits against Reviewing at the State Level committee will not hear a complaint the organization remains. As an Another manner in which expert if there is pending litigation, but example, in one case, an orthopedic testimony can be addressed is will reevaluate the issue when surgeon provided a “draft” report of through the state boards of medicine. the litigation has concluded. If the his expert opinion to a Pennsylvania This has already occurred in some committee determines that there law firm in a medical malpractice jurisdictions. has been unprofessional conduct, a suit involving another orthopedic hearing is scheduled, during which surgeon who was a defendant in In Fullerton v Florida Medical a court reporter documents the a malpractice case. 42 The expert Association, Inc, 62 an expert witness proceedings, and the respondent is witness had requested additional testified in a medical malpractice entitled to counsel. information, specifically, radiographs suit in which the defendant doctors After testimony, the committee goes of the patient, to complete his expert were exonerated from liability into executive session and makes a opinion. The law firm did not supply after the judicial proceeding. The recommendation to the AANS Board the radiographs but used the draft defendant physicians appealed to the of Directors. The potential actions report in settlement negotiations for Florida Medical Association (FMA) include censure, suspension, or the case. The surgeon, who was sued for review of the plaintiff expert’s expulsion. If an adverse decision is in the case, then filed a grievance testimony, alleging that it was below made, the respondent can appeal against the expert witness with the reasonable professional standards. to the Board of Directors or the American Academy of Orthopedic Before providing an opinion, the FMA general membership. Expulsions and Surgeons (AAOS) for violation of was sued by the plaintiff’s expert for suspensions are reportable to the the organization’s Standards of defamation, tortious interference, National Practitioners Data Bank. Professionalism on Orthopedic and witness intimidation. A lower Censure is reported on the AANS Expert Witness Testimony. 61 It court found the FMA was immune to Web site and can be accessed by was during the preparation for the the lawsuit. On appeal, however, the an institution or another member. hearing regarding this grievance that appellate court held that a medical Because the committee will not the expert witness learned that the association is not immunized from evaluate testimony in cases that are law firm had removed the heading liability in evaluating the testimony still active, there is no possible claim “draft report” from the opinion he of a medical expert. Thus, the of harassment of a witness. had provided during the settlement medical association can evaluate negotiations for the case. the testimony, but is not immune Although the AANS has been the to litigation thereof. In another most active, other professional case, in 1997, the Washington State The expert witness was medical societies have formed Supreme Court held that the State suspended from the AAOS for 2 similar committees. These include Board of Psychology could discipline years. Information regarding the the American College of Surgeons a member who failed to meet suspension was placed on the AAOS in 1988, the North American Spine professional ethical standards in Web site and was available to the Program in 2002, the American rendering expert testimony in child Academy of Neurology in 2002, the public. The expert witness then sued custody cases. The defendant expert American College of Obstetricians the law firm and the AAOS regarding had asserted witness immunity in and Gynecologists (ACOG) in 2002, the matter, claiming that his work providing expert testimony. The the Congress of Vascular Surgery in as an expert had been negatively court stated that a witness’ immunity 2004, the American Association of affected by dissemination of in providing expert testimony did not Orthopedic Surgery in 2005, and the information of the suspension. A jury extend to professional disciplinary American College of Cardiology in trial ended in a in favor of the hearings. 63 In 2002, the North 2006. expert witness. The surgeon settled Carolina Medical Board revoked a Peer review processes by after the verdict for an undisclosed surgeon’s medical license for giving professional medical organizations amount. improper expert witness testimony are not without obstacles. The costs in a medical malpractice suit. The associated with these programs are Based on the success of many surgeon appealed the state medical not insignificant and can run into professional medical societies board’s decision all the way to the millions of dollars. They require a in reviewing and enforcing their state supreme court. The North major commitment of staff (including standards for expert testimony, Carolina Supreme Court reversed legal staff) and volunteer resources. this is a worthwhile endeavor for the medical board’s decision on the Additionally, despite previous case any national specialties society to grounds that the expert had rendered law validating these programs, the undertake. his opinions in good faith. 64 In

Downloaded from www.aappublications.org/news by guest on October 2, 2021 PEDIATRICS Volume 139 , number 3 , March 2017 e9 summary, these cases demonstrate or that tighten the use of third-party experts 76; and that the on the authority and qualifications for medical experts encouraging academic institutions to scope of state medical associations to to more closely match those of the be accountable for the testimony of discipline medical expert witnesses is defendant physician (eg, geographic their faculty members. 77 inconclusive. factors, specialty training, The number and diversity of certification, percentage of time remedies speak to the level of Promulgating Examples of spent on direct patient concern surrounding the persistent Substandard Expert Testimony care, etc).67, 68 problem of unreliable expert A variant strategy for regulating Other preventive measures have testimony. or minimizing substandard expert included decreasing financial testimony is the of incentives for serving as an expert Using Expert Witness Affi rmations samples of substandard expert witness, which is especially testimony by professional medical To uphold high professional applicable to witnesses who societies. The American College standards, a growing number of travel extensively to provide of Emergency Physicians (ACEP) professional medical societies expert services. Examples have publicizes examples of false expert (eg, ACOG, American Urological included recommending caps on testimony as an educational Association, AAOS, ACEP, American the percentage of annual revenue exercise.65 This program focuses on Academy of Ophthalmology, that a medical expert can derive the expert’s testimony concerning American College of Cardiology, from testimony fees, or establishing the standard of care and whether American College of Radiology) fee schedules for expert witness it was breached. If the testimony have gone beyond the mere testimony that are based on a does not meet the ACEP criteria for pronouncement of appropriate set hourly rate determined to be accuracy, it is published in an ACEP behavior for expert witnesses reasonable or comparable to other communication vehicle typically and have enacted “expert witness medical consulting services. The without mentioning the name or affirmations.” medical profession has made it any identifying information of the clear that it is unethical for expert These voluntary statements are witness. The purpose of the program witnesses to base their fees for documents by which members is to educate ACEP members, not to testifying contingent on the outcome affirm their ethical obligations when punish. At the request of an ACEP of the case. 69 providing expert witness testimony. member, questionable testimony is The physician pledges that he or she reviewed by a 12-member medical Exploring Alternative Strategies will uphold professional principles expert standard of care review in providing expert testimony, panel. If the medical literature Another strategy for mitigating consistent with the ethical tenets of contradicts the statement of the the effect of out-of-state experts is the authoring organization. Because expert in question, a member of the use of court-appointed medical many experts list their membership the committee develops an article experts (permitted under FRE in a specialty society as part of describing the testimony given and 706) and/or professional medical their qualifications to testify, it is why it does not accurately reflect society–sponsored expert scientific reasonable for these organizations the standard of care in emergency panels. 70 At least one federal judge to provide such affirmations. 78 In medicine at the time of the alleged has suggested that judges may be addition, some medical organizations incident. more willing to use third-party include a provision in their experts if the experts were more affirmation that expert witnesses Enacting State Eligibility or easily accessible and their fairness will submit their testimony to peer Compensation Requirements and impartiality could be enforced review, if requested. 79 Although Despite variability in different by professional oversight and many of the professional societies jurisdictions, another strategy discipline. 71 Additional proposals for imposing this requirement in their for minimizing or preventing improving the expert witness system affirmations have professional irresponsible testimony may have included specialized health conduct programs, such provisions be to impose eligibility or courts 72; internal dispute-resolution can be included when the affirmation compensation restrictions by the processes within the hospital 73; statement is voluntary and in state. Approximately 30 states standardizing and regulating expert organizations without review had measures requiring minimum medical case review, analysis, programs. qualifying standards for physician and testimony74; adopting a experts.66 Some states have “data-based standard of care in An important benefit of expert proposed or enacted allegations of medical negligence” 75; witness affirmation statements

Downloaded from www.aappublications.org/news by guest on October 2, 2021 e10 FROM THE AMERICAN ACADEMY OF PEDIATRICS is that attorneys can use these LEAD AUTHORS STAFF statements to bolster the credibility Stephan R. Paul, MD, JD, FAAP Julie Kersten Ake of experts. Conversely, they may Sandeep K. Narang, MD, JD, FAAP dissuade from calling experts who are unwilling or ineligible to sign COMMITTEE ON MEDICAL LIABILITY AND ABBREVIATIONS RISK MANAGEMENT, 2014–2015 an affirmation statement. Affirmation AANS: American Association of statements can also be used to William M. McDonnell, MD, JD, FAAP, Chairperson Robin L. Altman, MD, FAAP Neurologic Surgeons impeach experts who fail to abide by Steven A. Bondi, JD, MD, FAAP AAOS: American Academy of the terms. Jon Mark Fanaroff, MD, JD, FAAP Orthopedic Surgeons Sandeep K. Narang, MD, JD, FAAP AAP: American Academy of Recommendations on advocacy, Richard L. Oken, MD, FAAP Pediatrics John W. Rusher, MD, JD, FAAP education, research, qualifications, ACEP: American College of standards, and ethical business Karen A. Santucci, MD, FAAP James P. Scibilia, MD, FAAP Emergency Physicians practices all aimed at improving Susan M. Scott, MD, JD, FAAP ASGS: American Society of expert testimony are found in a General Surgeons companion policy statement titled FORMER MEMBERS OF THE COMMITTEE FMA: Florida Medical Association “Expert Witness Participation in Civil Jay P. Goldsmith, MD, FAAP FRE: Federal Rules of Evidence and Criminal Proceedings.” 6 Stephan R. Paul, MD, JD, FAAP

POTENTIAL CONFLICT OF INTEREST: The authors have indicated they have no potential confl icts of interest to disclose.

COMPANION PAPER: A companion to this article can be found online at www. pediatrics. org/ cgi/ doi/ 10. 1542/ peds. 2016- 3862.

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Updated Information & including high resolution figures, can be found at: Services http://pediatrics.aappublications.org/content/139/3/e20164122 References This article cites 41 articles, 12 of which you can access for free at: http://pediatrics.aappublications.org/content/139/3/e20164122#BIBL Subspecialty Collections This article, along with others on similar topics, appears in the following collection(s): Current Policy http://www.aappublications.org/cgi/collection/current_policy Committee on Medical Liability and Risk Management http://www.aappublications.org/cgi/collection/committee_on_medica l_liability_and_risk_management Administration/Practice Management http://www.aappublications.org/cgi/collection/administration:practice _management_sub Medical Liability http://www.aappublications.org/cgi/collection/medical_liability_sub Permissions & Licensing Information about reproducing this article in parts (figures, tables) or in its entirety can be found online at: http://www.aappublications.org/site/misc/Permissions.xhtml Reprints Information about ordering reprints can be found online: http://www.aappublications.org/site/misc/reprints.xhtml

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