Volume 5, May
Punishing Experts, or
Protecting the Courts?
Louise Andrew, M.D., J.D.*
President, Coalition and Center for Ethical Medical Testimony
believe that there are several misstatements and factual reporting errors in
the article Punishing Medical Experts for Unethical Testimony: A Step in the
Right Direction or a Step too Far?, by David Resnik. To begin, the article seems to have taken
news accounts and plaintiff documents as source material in factual analysis of
the Lustgarten case. However, the
transcripts of hearings and depositions in this case are publicly available
from the NCMB, and have been analyzed on the website of the Coalition and
Center for Ethical Medical Testimony,
correcting some of the misinformation promulgated by the press.
first factual misstatement is that “Lustgarten also speculated that Jaufman had
falsified medical records to cover up his mistakes.” As the record shows, the speculation made by
Lustgarten was that Jaufman had temporized medical records in order to protect
his partner Keranen. (But sworn testimony by witnesses refuted this speculation
by affirming the observation entered by Jaufman in the medical record.)
example of error is found in the quote, attributed in the press to Lustgarten's
attorney, that "NCMB does not know of any cases in the U.S. where a board has acted
against a physician for unethical conduct related to expert testimony". That
was and is incorrect. In fact, counsel for the NCMB and Lustgarten's attorney
knew of several such cases, as I informed both attorneys myself of the
existence of these cases before the hearing.
argue that the Court documents were misquoted as well. The article states that "The Court found
that the statute granting the NCMB the authority to discipline physicians was
unconstitutionally vague as applied to Lustgarten's testimony concerning the
standard of care in a medical malpractice case because the statute does ‘place
a reasonably intelligent member of the
profession on notice he or she
could be disciplined for such conduct’." The decision actually reads that
the statute "does NOT put a reasonable, intelligent member of the
profession on notice that repeatedly misstating the standards of care while
testifying as an expert witness would be contrary to honesty, justice, or good
morals". As a matter of law, this is why the court ruled that the Board
could not discipline Lustgarten for this portion of his testimony, though the
court confirmed the factual findings of the Board that Lustgarten had
repeatedly misrepresented the standard.
author states that "To qualify as an expert, a witness need only possess
the requisite knowledge and skill of the defendant's standard of care. Thus, a general surgeon could testify against
a plastic surgeon on matters of general surgery, or a psychiatrist could
testify on post-operative care for breast implants." Although this may strictly be true with
respect to Federal Court (where qualifications are not defined, but subject to
the discretion of the judge), the majority of medical malpractice actions are
tried in state courts. The statutory
qualifications for medical expert witnesses vary substantially from state to
state, and this blanket statement is not accurate.
states, "For an expert witness to tell a lie, he must be making an
assertion of fact rather than an assertion of opinion." Generally, expert
witnesses are the only witnesses allowed to present both "fact" and
"opinion" testimony. One problem this creates is that experts do not
always make clear whether they are stating "fact" or
"opinion" in their testimony.
When an opinion is rendered, it should almost always be, but often is
not, supported by or based upon fact.
Experts frequently assert the standard of care as if it is fact, in
order to persuade jurors to see the case in the light most favorable to
"their" side. This is a major
recurring difficulty in medical expert witness testimony particularly.
someone asserts an opinion, on the other hand, they are only claiming that the
assertion is reasonable." This is
precisely the problem with a great deal of medical expert testimony. "Successful" experts know that to
the extent that they can convince jurors of their belief in their own assertions,
such assertions will be perceived by lay persons as factual.
Rarely would an expert be retained if he or she reminded the jury at each
juncture that an assertion is only his or her opinion, and that it is merely a
"reasonable" assertion. No one would hire that expert.
article states "An inference is reasonable if it is a conclusion that is
well supported by one's evidence or assumptions." The California Supreme Court recently
confirmed this (for California, at least) in its decision in Jennings v.
Palomar-Pomerado Health Systems, stating that
"an expert's opinion based on assumptions of fact without
evidentiary support, or on speculative or conjectural factors, has no
evidentiary value and must be excluded from evidence." The
problem is that many witnesses, like Lustgarten and the one in the Jennings
case, either expressly or implicitly rely solely on their purported
"knowledge and experience" rather than on any available evidence or
supportable assumptions, and sometimes in spite of evidence to the contrary, as
in the Lustgarten case. Having no way to judge the knowledge or actual
experience of the witness, juries often rely on an expert's claimed credentials
to determine the likelihood of appropriate experience on which the expert bases
his or her conclusions.
(sic) mere fact that an expert adopts a minority view is also no indication
that the expert is drawing an unreasonable inference, since minority viewpoints
can still be reasonable. An expert makes
an unreasonable inference only when he/she draws an inference that no expert
would draw, given the evidence and assumptions."
statement seems to imply that the only expert testimony which could be
considered unethical is testimony making inferences which NO other expert could
possibly draw. If one other expert might say the same thing, is it then
acceptable and ethical? The law in many
states supports a "respectable minority" defense, which would
recognize as standard a practice that is followed by at least a respectable
number of peers (without prescribing what is “respectable”). But one peer would
not be sufficient to establish a respectable minority defense. So would, as the author implies, the
concurrence of one expert that a practice lies outside the standard be
sufficient to justify such an inference as reasonable?
article also fails to mention that an ethical expert has an obligation to reveal
to a jury that his or her view may be a minority view, and that there are other
schools of thought or views (if such is true).
Suppose an expert found one other colleague who would agree with his
interpretation of the facts. Would this make the expert's opinion reasonable
and ethical? Would s/he be obliged to
reveal that only one other practitioner shares this view? In the Austin case discussed in the article,
records reveal that Austin made a categorical statement
about the standard of care for a certain neurosurgical procedure, and testified
that the majority of neurosurgeons would agree with him. Not one of his colleagues in the AANS agreed
a deeper level, one might argue that expert testimony is opinion testimony
because statements about the standard of care do not describe facts." We
would generally agree with this latter statement, for the undeniable reason
that nowhere is the standard of care for any medical specialty proven
scientifically, or even agreed to by a majority of the profession. Since the
concept of medical "standard of care" is a legal construction and not
fact, the only evidence which could possibly be adduced about it would be
opinion. But does this give the expert license to say anything at all and be
protected from any kind of review for veracity? Again, the problem is that lay
juries can easily be led to believe an impressive witness's recitation that a
certain practice constitutes (or breaches) the standard of care. Rare is the expert who admits that there is
as yet no valid way to determine the actual standard of care, or that many
would disagree with him or her.
pronouncement which we consider most troublesome about Resnik's article,
however, is the following:
Statements about the standard of care
are normative (or prescriptive) statements about how physicians ought to
behave, not descriptive statements about how physicians tend to behave.
Normative statements do not describe facts about the world; instead, they
reflect our commitments, goals, and ideals.
is a misstatement about the standard of care in the majority of U.S. jurisdictions. Testimony given
by an expert to a jury about the standard of care should be confined to the
actual existing standard, insofar as it can be ascertained, and NOT to some
ideal, which would in many cases far exceed the actual legal requirement,
correctly stated earlier in the article. Explains one legal expert, "Perfection
is the social aspiration, but not a legal requirement; an honest effort in
conformity with customary standards is all that can be demanded of
physicians."  Even in
those states which recognize the so called “reasonable care” standard, the care
required is “reasonable”, not necessary ideal and not simply aspirational.
courts grant all witnesses, including expert witnesses, immunity from torts
related to their testimony." This was once true, but is no longer,
particularly in the case of paid professional expert witnesses, as recent cases
sanctioning experts for the testimony could also have an adverse impact on
access to the courts, since it will deter qualified experts from testifying in
medical malpractice cases."
there any evidence that qualified experts are likely to be sanctioned
and thereby deterred? Isn't it more
likely that unqualified, overreaching experts, or those who have been
sanctioned for dishonesty in testimony would be the ones who are deterred?
the Missouri Supreme Court in Murphy v. Mathews, "There is no
reason to believe that professionals will abandon the area of litigation
support merely because they will be held to the same standard of care
applicable to their other areas of practice.”
the state takes steps that would have a detrimental impact on medical experts'
willingness to testify for plaintiffs in malpractice cases, then this would
deny a potential class of plaintiffs the opportunity to litigate these cases
and would prevent individual plaintiffs from having access to the basic tools
they need to litigate."
would peer review of testimony by a state medical board uniquely affect plaintiff
testimony? Is not a state Medical Board the one agency (in a position to pursue
rogue expert witnesses) which is open to both plaintiff and defendant patients
as well as trial lawyers and other doctors who are aggrieved by such testimony?
And if, as we believe, it is the dishonest experts who are most likely to be
deterred by sanctions, why would this uniquely deprive plaintiffs of the
basic tools they need to litigate? We believe it wouldn't. Defense experts are
certainly not distinguished for their honesty. We believe some experts provide
skewed testimony in a misguided attempt to "even the playing field"
(as they envision it), which is a reprehensible reason to enter the expert
witness arena. If experts are harder to engage after there are more sanctions
and other peer review of more testimony for impartiality, truthfulness and
ethicality, then perhaps all litigators will need to be more diligent in the
search for more reliable, if less pliable experts.
decision to take away Lustgarten's license was a content-based restriction on
speech because it was in response to the content of his testimony in
freedom of speech confer license to say whatever you like in court with
impunity? If Freedom of Speech were a permissible consideration in court
testimony, why is there a process of swearing to speak the truth? Even if society might allow for false
statements to be made publicly, does not someone serving as an officer of the
court (as an expert witness) have an obligation to speak the truth to the tribunal?
We applaud the journal for
taking on these issues, rife as they are with ethical implications. We would welcome a continuing discussion of
these issues in this journal or on our website in any of the open Forums.
Journal of Philosophy, Science & Law, Vol. 4, Dec. 7, 2004, at
 http:// www.ccemt.org
 "Dr. Lustgarten testified, in
the absence of any corroborating evidence and in spite of evidence to the
contrary, that a physician falsified medical records to protect his
associate." Transcript of Hearing, In
re Gary James Lustgarten, M.D., July 19, 2002, at 7-9.
 See, e.g., D. Bernstein,
"Improving the qualifications of experts in medical malpractice cases,"
Law, Probability and Risk (2002) 1, 9-16, a version of which may be found
online at http:www.law.gmu.edu/faculty/papers/docs/01-24.pdf.
 As one expert
on expert evidence puts it, "The confident expert witness is less likely
to have been chosen because she is right, than to have been chosen because she
is confident whether or not she is right." Samuel R. Gross, 1991 Wis. L. Rev. 1113, 1134
(1991), also at http://www.law-forensic.com/expert_evidence.htm is an extensive
reference on matters relating to expert witness testimony.
 Experts whose incomes depend on testimony
must learn to satisfy the consumers who buy that testimony; those who do not
will not get hired. In some cases experts may distort their views to suit the
interests of their clients, perhaps even lie outright, but that is probably not
the major problem. Litigants are not likely to choose experts who must
lie--they would rather use experts who give helpful testimony and believe it,
and such people can usually be found. Gross, at 1132; see also S. Moss, "Opinion
for Sale: Confessions of an Expert Witness,"
Legal Affairs, March-April 2003, at
 114 Cal. App. 4th 1108 (2003), and
discussion of issues at www.ccemt.org/displayindustryarticle.cfm?articlenbr=19915
 L. B. Andrew, "The Ethical
Expert Witness," Journal of Medical Licensure and Discipline 89:3, October
2003, page 125, republished by the NCMB Forum Number 4, 2003, page 7, available
M.M. Mello, "Of swords and shields: the role of clinical practice
guidelines in medical malpractice litigation," 149 U. Pa. L. Rev. 645 (2001).
 L. Weiss, "Expert Witness
Malpractice Actions: Emerging Trend or Aberration?" The Practical
Litigator, 27-38, March 2004; Mark Hansen, "Experts are Liable, Too,"
ABA Journal, Nov. 2000; Renee L. Binder, "Liability for the Psychiatrist
Expert Witness", Am. J. Psychiatry 159:11, Nov. 2002.
 841 S.W. 2d 671 (Mo. 1992).
 See http://www.ccemt.org/forum.cfm