Doctors and Lawyers: Witness intimidation?
March 11, 2008
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The American College of Obstetricians and Gynecologists says expert witnesses must limit their testimony to their medical expertise, and doctors shouldn’t accept payment that is contingent on the case’s outcome.
“As technology becomes more complex, associated benefits and risks may increase, making the complication-free practice of medicine less possible,” the policy says.
The policy also cautions physicians to know the difference between negligence and medical maloccurrence, which is described as “a bad or undesirable outcome that is unrelated to the quality of care provided.”
In an explanation of its ethical conduct program, the American Association of Neurological Surgeons makes no secret that most complaints of unprofessional conduct involve expert witness testimony in malpractice cases. And any sanction against an AANS member is reported in the organization’s bulletin.
“There’s clearly a climate of intimidation and clearly one that is working,” said John Vail of the Center for Constitutional Litigation in Washington, D.C. “Because I have doctors telling me if they have to go through this — even if they’re exposed to it — they’re not going to testify. And I have lawyers saying that it’s harder and harder to find doctors who are willing to testify.”
Representatives at ACOG and AANS declined to comment for this article.
Marilee Clausing, a partner at Anderson, Rasor & Partners who is also a licensed nurse, said the policies aren’t there to intimidate anybody. Rather, they try to ensure that doctors are honest and ethical in their testimony, she said.
“To have professional organizations concerned that their members remain honest and ethical in the testimony promotes the interest of both sides in getting the kind of expert testimony that is within the bounds of their expertise,” Clausing said.
Another defense attorney who represents physicians in malpractice cases said that he has dealt with doctors who want to pursue complaints against plaintiff’s experts after trial.
“And we try to discourage them from doing it because we don’t want to be accused of witness intimidation,” said Richard H. Donohue of Donohue, Brown, Mathewson & Smyth.
“The point is, every doctor that’s in the case thinks the expert on the other side is a whore and should be sanctioned, and that’s just not true. Sometimes there’s a difference of opinion, and people see things differently.
“There’s no question that in the last 10 years, there’s been agitation among these [medical] groups on trying to self-police. I think that’s true,” Donohue said. “But I frankly don’t know how successful they’re being, if at all.”
Dr. Barry Schifrin said he knows.
The son of a founding fellow of ACOG, Schifrin has served as a plaintiff’s and defense expert for 30 years and was part of the Yale medical team in the late 1960s that developed the fetal heart monitor.
A variation on the theme: I have spent 30 years representing professionals in defense of state licenses under attack by the state for various forms of misconduct.
Medical doctors are also intimidated by the perceived threat that , in Illinois, the Department of Professional Regulation will turn on them if they testify for the M.D. respondent in a state prosecution to discipline the respondent’s license.
There is a certain gutlessness evident in both types of litigation by potential witnesses who are medical doctors.