Expert medical testimony: is there an answer to "not only relevant, but reliable"?

• Author: Collins, Richard B.

Conflicting expert testimony on causation is too complex for judges or juries, and a new model of court-appointed experts and physician discipline is needed

THE American Medical Association has determined that physicians are considered to be practicing medicine when testifying as experts in formal court proceedings.(1) This determination marks an important first step by the medical profession to regulate the introduction of unsupported medical testimony that now troubles the American court system.

In the context of medical malpractice cases, there are three areas in which medical expert testimony is essential--first, to establish the applicable standards of care; second, whether the defendant physician departed from those standards; and third, whether the departure was the efficient cause of loss, injury or death to the patient. On the first point, expert witnesses testify to establish the applicable standards of care based on their training, education and experience as similar health care professionals. On the issue of medical causation, however, a greater degree of speculation and conjecture is often brought to bear. The medical expert must tie together with logical and sound basis the event claimed to have been an error of omission with the ultimate outcome and injury.

Especially in the causation part of this required proof, more stringent rules and regulations are needed to sanction purported experts whose opinions test the bounds of scientific honesty and reason. With some physicians charging more than $1,000 an hour for their time, the financial incentive to provide testimony that pushes the bounds of academic and scientific honesty on the causation issue has continued to heighten in recent years. The AMA's position theoretically will suppress this incentive by requiring physicians to accept responsibility for their testimony in both the legal arena and within the medical profession itself.

While physicians will take note of this position, the AMA lacks the ability to levy serious sanctions against physicians who provide improper testimony. Individual state medical licensing agencies, medical associations, courts, and legislatures are ultimately left to determine the effect of this decision in particular jurisdictions.

The following is designed to identify the problem of applying modern expert witness standards to the required triad of proof in a medical malpractice case and to aid state entities in choosing a viable answer. to the problem of improper medical testimony.

MODERN EXPERT STANDARDS

1. Standards for Expert Testimony

   Plaintiffs in medical malpractice claims generally are required to prove three specific elements.(2) First, they must demonstrate the professional standards of care at the time of the alleged malpractice. Second, they must prove that a departure or breach of those standards occurred. Third, they must demonstrate that the breach proximately caused the damages claimed. Each of the elements requires medical expert testimony.

   Federal Rule of Evidence 702 permits the introduction of expert testimony if "scientific, technical, or other specialized knowledge will assist the trier of fact" in understanding the evidence in question. The U.S. Supreme Court recognized Rule 702 as the correct standard for admitting expert testimony into evidence in its Daubert v. Merrell Dow Pharmaceuticals, Inc. decision.(3) Unlike earlier standards(4) that merely required the judge to determine whether the testimony was generally accepted within the medical community, the new rule requires that judges look at a broad range of factors in deciding whether the expert is being asked to testify to scientific knowledge that will assist the judge or jury in determining a fact in dispute.

   In Daubert, the Court set forth four specific factors to provide guidance. First, the court should look to see whether the proposed theory or technique can be and has been tested. Second, the court should determine whether the proposed theory has been subjected to peer review and publication. Third, the court should consider the known or potential rate of error. Finally, the court may look to ascertain whether the theory or technique has been generally accepted within the scientific community. Although these factors may bear on a court's decision to admit expert testimony, the Court has also made it abundantly clear that these factors are not meant to be a "definitive checklist or test."

2. Standards and Breach

   Court rules and legislative mandates have addressed the first two elements by setting forth who may testify as to the standard of care and whether there was a breach of that standard by specifying that only physicians with similar training or similar board certifications can opine on these subjects. To some degree this has cut down on opinions being expressed by individuals who are not possessed of sufficient training, education and experience to know what the standard the care is under the circumstances of the fact setting.

   In the usual case, each party will use medical experts who practice in either the same or a similar field of medicine to demonstrate that the...