Beneficence (that is, do good) and nonmaleficence (that is, do no harm) are cardinal principles in health care delivery. While the public perceives these ethical tenets as the responsibility of health care professionals, they apply mainly to a treating relationship between doctor and patient. When health care professionals function in non-treating roles, such as forensic consultants and medical expert witnesses, beneficence and non-maleficence are not relevant.1 Legal medical expert testimony is designed to establish a standard of care or address the meaning of medical and scientific evidence. It is then the responsibility of the court or jury to determine whether that standard of care has been breached.2
Rendering expert opinions on forensic matters is an ethical part of dental practice.
A conflict is apparent between the presumed duty of medical professionals to do no harm and the actions of third-party hired medical experts in rendering opinions on matters of legal dispute. In most cases, resolution of these disputes will produce legal harm to one side or the other. Unfortunately, instead of searching for the truth, legal experts sometimes exhibit bias and serve the hiring party’s interests instead of the public’s or those of justice.3
In this article, we define the different types of expert witnesses, detail positive and negative contributions of medical experts in the judicial system and offer suggestions for improving the quality of expert testimony. We also address the role of bioethics in litigation. Finally, we appraise the impact of politics in attempts to change the present system of expert testimony.
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DEFINITIONS AND TYPES OF MEDICAL EXPERT WITNESSES
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We define the legal system’s expert witness on four levels: federal and state statutes, professional association principles of ethics and codes of conduct, and individual interpretations. Rule 702 of the Federal Rules of Evidence states that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."4
While states may have differing definitions, Florida statutes are typical of many in reporting that " ‘medical expert’ means a person duly and regularly engaged in the practice of his profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion."5 Florida law further states that "any health care provider may testify as an expert in any action if he is a similar health care provider" to the one accused of negligence, or "[if] not a similar health care provider ... but, to the satisfaction of the court possesses sufficient training, experience, and knowledge as a result of practice or teaching in a related field of medicine. ..."5
The American Dental Association Principles of Ethics and Code of Professional Conduct states that "dentists may provide expert testimony when that testimony is essential to a just and fair disposition of a judicial or administrative action."6
Medical expert witnesses gain qualification through actual experience or careful study that enables them to form opinions that people without that experience or special study (that is, laypeople) would be incapable of doing. Miller’s description of an expert witness, then, is accurate and concise: "people believed to possess information beyond the ordinary knowledge of judges and juries."7
The judicial expert witness needs to be distinguished from other types of medical witnesses. A fact witness may testify only about the facts directly observed, while the expert witness can offer an opinion about facts not directly observed and not readily understandable by laypeople, judges and juries.8 Such opinions are inadmissible in court unless offered by an expert qualified by the judge. The treating physician witness has a legal obligation to testify about any treatment rendered to a patient, and may serve only as a fact witness. The treating physician may also qualify as an expert witness, in which case opinions about the facts at hand may be offered.
Courts then have a great deal of discretion in qualifying medical expert witnesses. In the eyes of most judges,8 the mere possession of a dental or medical degree qualifies one for expert witness status. This is true even though the dentist or physician may not be a specialist in the field in question.8
In contrast to the treating physician or dentist, the nontreating medical expert witness is not compelled to give legal testimony. Any courtroom testimony on the part of medical experts is done on a voluntary, albeit paid, basis, at the behest of the plaintiff or defendant in a civil lawsuit, or as requested by a prosecutor, defense attorney or judge in a criminal matter.
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FORENSIC EVALUATION: PROFESSIONAL OBLIGATION
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The question may be raised as to the general ethics of any forensic testimony by health care professionals. In response, Bockelmann (cited by Nishiyama) pointed out that "evaluation is one of the professional duties of the physician."9(p66) We may substitute any health care professional title for that of physician. Appelbaum3 reminded us that forensic medical experts are of great help in the judicial process and in dispensing justice. The rendering of legally mandated medical examinations, evaluations and opinions is broadly viewed as a social responsibility, since it aids the jury and court in understanding health-related issues. Medical expert testimony is a normal, necessary and ethical component of health care practice.
Contemporary health care professionals fit a dual model of therapist and evaluator.9 However, given the state of health care education and training, we believe that most health care professionals are far more comfortable with the first role, viewing the legal realm as strange, different or threatening. Law-oriented people may hold the same views relative to the health care field.
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MEDICAL EXPERT STANDARDS
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According to Nishiyama,9 the expert medical witness acts as the spectacles of the judge and jury in courtroom proceedings. Ideally, when jury members don these spectacles, they see and understand the medical issue in question. In this sense, forensic medical experts serve as a bridge to justice.
Simon and Wettstein10 cited the ethics guidelines of the American Academy of Psychiatry and the Law to define ethical standards for medical expert witnessing. Honesty and objectivity are listed in these guidelines as essential principles of ethical testifying. The ADA’s Principles of Ethics and Code of Professional Conduct offers the advisory opinion that "it is unethical for a dentist to agree to a fee contingent upon the favorable outcome of the litigation in exchange for testifying as a dental expert."6 Even though forensic medical experts usually are hired by one side or the other in legal disputes, adherence to ethical practice requires examiner neutrality.10 Kipnis11 reported that medical experts also should willingly admit the limits of their knowledge and expertise. According to Rappeport,12 the prime responsibility and most important legal service of medical experts is promoting the search for truth.
The expert’s character, credentials and background are perhaps more important than the actual testimony.
The expert’s character, credentials and background are perhaps more important than the actual testimony. Being distinguished in these areas provides the best chance of securing honest and objective expert testimony.
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THE HIRED GUN
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The reality of medical expert testimony may descend below the ideal. Appelbaum3 described ethically devoid forensic experts as representing another way for the wealthy and influential to "purchase the results they desire from the justice system." Abdel-Fattah13 wrote that some health care professionals market themselves as forensic experts through advertisements in legal journals and magazines, as well as in direct mailings, and that they see "nothing wrong in marketing for a physician witness business." Nishiyama9 defined health care providers who make a profession out of courtroom testifying as having minimum therapist character.
Fletcher14 used the term "hired gun" to describe expert witnesses whose opinions can be bought by either side in a legal dispute. Hired guns typically earn a large portion or all of their professional income from testifying. They usually testify exclusively for the plaintiff or defense. These witnesses will sell and present in court any legal opinion desired by the hiring side. Rendered testimony can be "incomplete, deliberately shaped ... , incompetent, or transparently dishonest."3 For this group of health care professionals, the desire for financial gain overwhelms ethical considerations. Tsushima and Nakano8 wrote that "these physicians [or dentists] do great harm to themselves and the medical [dental] profession, and fail to safeguard rights and freedoms of plaintiffs or defendants."
In the American justice system, it is the responsibility of the opposing attorney to alert the jury to conflicts and contradictions presented by the hired gun. In the courtroom, hired guns can be revealed on the stand and have their credibility questioned through cross-examination. In our legal system, the jury is the trier of fact, and the expert helps the jury understand the facts. Along with evaluating the credibility of experts, the system is designed to allow the jury to hear the truth.
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QUALIFYING MEDICAL EXPERTS IN THE COURTROOM
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A new legal standard for acceptability of medical testimony arose from the 1993 U.S. Supreme Court decision in Daubert vs. Merrell Dow Pharmaceuticals.15,16 The Supreme Court applied a more liberal basis for admissibility of such testimony, allowing the trial judge to serve as gatekeeper regarding statements made by scientific and health care experts. Before this, the Frye decision of 1923 served as the legal standard, usually mandating publication of an expert’s medical and scientific findings in respected, peer-reviewed professional journals before being admissible in the courtroom. Such peer-reviewed publication is no longer required.17
Since possession of a health care degree confers expert witness status in most courtrooms, and with the precedent of the Daubert decision, the legal-qualifying process for medical experts is seen as "a coarse sieve for sorting knowledgeable witnesses from poor ones."3 For example, few real checks exist on what medical experts can say in insurance company–paid evaluations or in court. Lack of medical knowledge by judges and juries causes them to focus on impressive-sounding credentials instead of true expertise. No matter how bizarre or dishonest the testimony or evaluation, prosecutions against medical experts are rare.
The laws of most states do not confer doctor-patient relation status, with its inherent ethical duties, on forensic medical evaluations done at the behest of a third party. An example is the so-called independent medical evaluation, which, in fact, is arranged by, paid for by and provided to an insurance company.13 Where a court appoints a medical evaluator, it typically grants immunity to that evaluator. The expert literally has a license to report anything he or she wants to about the patient, with little or no worry of legal liability. Expert accountability occurs in court as the opposing attorney alerts the jury to testimonial inaccuracies or inconsistencies during cross-examination.
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BATTLE OF THE EXPERTS
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The American legal system is adversarial in nature. Plaintiffs and defendants have equal rights to present medical experts to buttress their arguments. These experts are subject to direct examination by hiring attorneys, and to cross-examination by opposing attorneys. The system is thought to be the best route to truth and justice.
An important potential check on weak courtroom science is effective cross-examination by the opposing attorney.
As Annas,18 Bayer,19 Jerrold20 and Laskin21 pointed out, however, instead of building bridges to truth and justice, the system of contradictory medical testimony can place minefields of confusion between justice and understanding of issues and facts by lay juries and judges.
Horsley22 wrote that lay juries typically come to understand complex medical and scientific issues, while Brent17 has argued that juries are easily swayed by nonfactual or scientifically weak expert testimony, commonly known as junk science. In a perfect world, courts would rule junk science as inadmissible and juries would respond to truthful expert testimony and avoid emotional appeals. Alas, reality brings imperfection; ultimate beliefs by judge or jury might not rest on the facts at issue, but on the best expert or legal performance before the jury, as well as on skillful exploitation of courtroom emotions.
An important potential check on weak courtroom science is effective cross-examination by the opposing attorney. While not an infallible approach, the cross-examining attorney has the opportunity to address not only the issue of the expert’s credibility, but the reliability and significance of his or her scientific evidence.
Failure of the American legal system.
Despite this, two examples illustrate the apparent failure of the American legal system to render justice in the face of junk science testimony. The first deals with the lawsuit brought against breast implant maker Dow Corning Corp., alleging that silicone breast implants cause autoimmune disorders. Anecdotal and emotionally oriented evidence was presented to support the allegation, along with experimental results that were not published in respected, peer-reviewed professional journals.23 In a 1998 settlement of this case, Dow Corning Corp. filed for bankruptcy and agreed to pay $3.2 billion to 170,000 plaintiffs.19 Legal fees generated by this settlement approached $1 billion.
The same month that legal settlement was reached in the Dow Corning case, the European Committee on Quality Assurance and Medical Devices, having studied the relationship of silicone breast implants to systemic disease, commented that "the evidence is conclusive that implants do not cause autoimmune or connective tissue diseases."19 A few weeks later, the Independent Review Group of Great Britain, appointed by that nation’s Minister of Health, found "no histopathological, immunological or epidemiological evidence" of disease caused by silicone breast implants.19 A third scientific body, the National Science Panel appointed by U.S. District Court Judge Pointer, the Dow Corning trial judge, reported later in 1998 that "the main conclusion that can be drawn from existing studies is that women with silicone breast implants do not display a silicone-induced systemic abnormality in the types or functions of cells in the immune system."19
Despite these findings, the Dow Corning settlement remains intact. May we interpret this as a triumph of junk science in the American legal system?
Antinausea drug controversy.
The second example of apparent injustice relates to the doxylamine (Bendectin, Merrell Dow Pharmaceuticals Inc.) controversy.15 Bendectin is an antinausea drug approved by the U.S. Food and Drug Administration that had been prescribed for use during pregnancy.17 The plaintiff alleged that this drug caused birth defects in the offspring of women who used it. In a detailed analysis, Brent, a scientist, reported that similar to the silicone breast implant issue, there was a lack of controlled, peer-reviewed studies showing a cause-and-effect relationship between Bendectin use and birth defects. Nonetheless, another large monetary settlement was reached in favor of the plaintiff.17
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NEUTRAL EXPERT WITNESSES AND PANELS
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Macklin24 characterized ethically desirable dispute settlements as ones striving to maximize both truth and justice. Based on the scientific state of the art, the breast implant and Bendectin cases fail that standard.17,19 However, hope for improved quality of medical expert testimony and courtroom justice lies in the independent or neutral scientific panel or expert, a model of which was used in the breast implant trial.
The neutral medical expert is appointed by a judge, as opposed to the usual medical expert selection by the plaintiff or defendant. The work of the independent panel or expert is done separately from the adversary proceedings in the courtroom. The panel’s findings may have the standing of expert testimony that can override other courtroom expert testimony.24
Curriculum changes in medical and dental education are one way to elevate the caliber of medical expert testimony.
Use of neutral panels or experts may reduce jury confusion about medical facts and eliminate the legal battles between experts. While this appears to be a logical and simple solution to confusing or unethical expert practices, change in any established system does not come easily. Before considering systemic difficulties in elevating the quality of medical expert testimony, we will discuss two other potential change agents.
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PROFESSIONAL CONTROL
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The health professions bear responsibility for creating and enforcing strong ethical standards for medical expert practices. An example is the American Academy of Psychiatry and the Law, which offers fellowships in forensic psychiatry and certification by the American Board of Forensic Psychiatry. According to Appelbaum,3 the aim of this organization is to improve the quality of psychiatric forensic testimony. However, the need to canvass and obtain agreement from all association members in order to create and enforce ethical guidelines makes most professional codes of ethics weak and unenforceable.25 Should a medical expert not belong to a professional association, the ethical code would not apply. Should the expert be a member, the worst punishment is loss of that membership. Other solutions must be found.
Curriculum changes in medical and dental education are one way to elevate the caliber of medical expert testimony. Gee and Mason (as cited by Tsushima and Nakano8) recommended that all doctors be trained for the role of medical expert witness during medical or dental school or residency programs. Since we often learn more from mistakes than from successes, predoctoral and postdoctoral dental and medical education could include review of malpractice cases and the testimony of expert witnesses. Part of this exposure could include review by faculty members of sworn testimony from depositions and courtroom proceedings. Gee and Mason, professors of forensic medicine, wrote that a case review process would introduce students and residents to the legal realities of the health care professions, provide a forum to analyze forensic testimony, and prepare doctors to interact with the legal system.8 The result may be improvement in the number and ethical caliber of expert witnesses in the health care field.
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BIOETHICS AND THE COURTS
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Does bioethics play a role in medicolegal matters? Increasing numbers of bioethicists serve as experts or advisers in litigation.14 Their expertise as scholars/teachers and consultants on particular bioethical issues merits expert witness status. Before we view ethicists as one answer to the problem of dishonest medical testimony or as legal knights in shining armor, we do well to heed the advice of Fletcher,14 a professor of bioethics. He wrote that "unlike a good teacher of ethics, a forensic expert is not expected to excel in fair and probing analyses of all sides of issues."14 In our adversarial legal system, the hired ethicist, as with other medical experts, takes sides and identifies with one side over the other. He or she then is subject to loss of neutrality and objectivity.
Fletcher14 himself attempted to avoid taking sides by refusing any fees for forensic testimony. He admitted that his financial status allowed this liberty. Other experts may not be so fortunate!
Annas18 has been skeptical of the ability of bioethics to elevate legal standards of expert testimony, stating that "law is a primary force, a powerful and overshadowing presence, that determines and instructs the agenda and practical expressions of bioethics in the United States." Agich and Spielman26 found neutral bioethics panels to be potentially valuable adjuncts to the legal system. These panels could assist in the process of ethical decision-making before legal action or trial has taken place. Such ethical committees primarily would serve a pedagogic, rather than judicial, function.
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THE REALITY OF POLITICS AND LAW
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Despite efforts at tort reform in Texas, Florida and elsewhere, neutral medical or scientific experts (covered in Rule 706 of the Federal Rules of Evidence27) are unlikely to broadly displace traditional plaintiff or defense medical experts. An important reason is the huge amount of money at stake in liability verdicts. The so-called tobacco settlements have enriched legal coffers to the tune of billions of dollars in states where cases have been settled. The above-mentioned breast implant settlement generated $1 billion in legal fees. These sums buy political clout and directly influence legislation affecting the judicial process. Favorable laws make winning huge liability cases more likely and perpetuate the vicious cycle of money buying ever more political influence. Public opinion is molded by massive advertising campaigns promoting the rights of so-called victims, which are funded by the legal establishment’s deep pockets.
A social, if not ethical, dilemma presents itself in our attempts to protect the legitimate rights of injured people to sue for professional negligence, while restraining illegitimate claims of injury. Until the public realizes that everyone bears the burden of multimillion-dollar or billion-dollar medical judgments in the form of higher costs for all goods and services, the present system largely will remain intact.
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SUMMARY
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Providing expert testimony or forensic evaluation is an important part of health care practice. When performed with neutrality and objectivity, such service is entirely ethical and is, in fact, a valuable contribution to society. However, when medical or dental experts exhibit bias and intentionally serve the interests of one party to the exclusion of truth and justice, both professional ethics and the public’s interests are compromised.
A number of approaches may elevate the quality of medical expert testimony. Among these are stronger professional association codes of ethics, court-appointed neutral expert witnesses or panels, inclusion of case-based analysis of medical expert testimony in medical and dental education programs and input from the field of bioethics. Still, huge monetary awards in professional and product liability cases fuel a cycle of political influence and legislative favoritism that provides a potent challenge to changing the present system.
Tsushima and Nakano8 provided perhaps the best advice for health care professionals serving as expert witnesses. As they stated, "physicians [dentists] called on to testify should be concerned with truth and justice, and the responsibility of determining what the truth is and what justice is rests with the individual physician [dentist]. Doctors should: accept responsibility for testifying in court, support testimony with firm scientific evidence, acknowledge limits of the evidence as well as their expertise, and remain objective and impartial."
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ABSTRACT
DEFINITIONS AND TYPES OF...
