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Bearing False Witness

¹ Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.

Received January 8, 2003; accepted after revision January 10, 2003.

 
Case summaries are based on actual events and lawsuits, although certain facts have been omitted or modified by the author. All opinions expressed herein are those of the author and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society.

Address correspondence to L. Berlin (lberlin{at}rsh.net).

Introduction

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 

Thou shalt not bear false witness against thy neighbour.

Exodus 20:16 [1]

The Case

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
A 37-year-old man who was involved in a motor vehicle crash was taken by ambulance to the emergency department of a Vermont hospital. A neurologic examination conducted by the emergency department physician had normal findings. The patient was found to have an open left patellar fracture. Radiographic examination also revealed fractures of the left ankle and a minor avulsion fracture of the third cervical vertebra, but unenhanced CT of the head was interpreted by the radiologist as showing normal findings. The patient was admitted to the hospital and later underwent surgical repair of the patellar fracture. The patient's postoperative course was unremarkable and he remained neurologically intact, but 3 days later he attempted to walk to the bathroom unassisted. He fell, and about 5 min later was found unconscious on the floor. CT of the head performed immediately revealed a large subdural hematoma with a midline shift. The patient was quickly taken to surgery, where the hematoma was evacuated and two actively bleeding arteries were found. The pathology specimen was reported as "fresh clot." The patient never regained consciousness and remained in a coma for 15 months, when his life support was finally discontinued and he was pronounced dead.

The family of the patient filed a medical malpractice lawsuit that alleged that the radiologist had missed a small subdural hematoma on the initial CT scan obtained when the patient had been taken to the hospital's emergency department. Offers tendered by the plaintiff's attorney to settle the lawsuit were rejected by the defendant radiologist, and thus the case proceeded to a jury trial.

At trial, an expert neuroradiology witness retained by the plaintiff's attorney testified that the hematoma was clearly evident on the initial head CT scan and that the defendant radiologist's missing it constituted a breach of the standard of radiologic care. The plaintiff's neuroradiology expert also testified that the large subdural hematoma present on the head CT obtained after the patient had fallen had the appearance of a chronic rather than an acute hematoma, indicating that the patient's fall was the direct result of the failure to diagnose and treat the hematoma that had allegedly been missed on the admission CT.

The defense attorney retained a neuroradiology expert witness, a professor of radiology at a local medical school, who testified unequivocally that the failure to discern a hematoma on the initial CT was not a deviation from the standard of radiologic care, contending that the hematoma was so subtle that any radiologist could have "easily missed" the finding. The defense expert also took issue with the plaintiff's expert witness's characterization of the large subdural hematoma noted on the CT scan obtained after the patient's fall as chronic, asserting that the appearance of the hematoma was clearly that of an acute hemorrhage. Another of the defendant's experts, a neurosurgeon and former chair of neurosurgery at the local medical school, similarly testified that he would not have seen the subdural hematoma on the initial CT.

After the trial concluded, the jury deliberated and reached a verdict in favor of the defendant radiologist. The plaintiffs appealed the case to the Vermont Supreme Court arguing, among other things, that the statements made by the defendant's experts regarding their interpretation of the CT examinations were "misrepresentations" of fact. The defendant radiologist, on the other hand, believed that the testimony given by the neuroradiology expert for the plaintiffs was erroneous and in fact false. The court upheld the jury's verdict [2].

The Vermont case is not the only one in which an expert radiology witness has been suspected of having testified falsely. In California, two neuroradiologists were sued for malpractice for allegedly misinterpreting a subdural empyema as a subdural hematoma. As a result, the lawsuit charged, the patient suffered permanent neurologic damage. Eventually, the lawsuit proceeded to trial, at the conclusion of which the jury found in favor of the defendant radiologists. Privately, the two defendant radiologists believed that the trial testimony of the expert neuroradiologist retained by the plaintiffs was inappropriate, biased, and scientifically inaccurate.

False Testimony and the Expert Witness

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
In theory, all physicians acting as expert witnesses are expected to seek truth and, especially while under oath in court, to speak truth. Indeed, the American College of Radiology (ACR) Standard on the Expert Witness in Radiology [3] that became effective January 1, 2003, states, "The expert witness must be as impartial and objective as possible." However, as George Lundberg, former editor of the Journal of the American Medical Association, once observed [4]:

It is very difficult for any person who has grown up in a system of "sides" on the football field or in the debating hall not to share an advocacy position when his or her services have been secured by counsel committed to such advocacy.

Litigation, by its very nature, is adversarial. Expert witnesses retained by either a plaintiff's attorney or a defense attorney are selected because their opinions differ, sometimes quite strongly, from those selected by the opposing side. When does contrary testimony become false testimony? Can penalties be levied against an expert who has proffered false testimony? The ACR Standard on the Expert Witness in Radiology [3] states that "The expert witness can be held accountable for statements made during a legal proceeding." This article will explore whether, and if so in what manner, expert witnesses can be held accountable if they give court testimony that is later deemed to be false. To begin the discussion, however, we must define what an expert is, and who determines whether an expert's testimony is permitted to be introduced into a court of law.

Role of the Judge in Deciding Who Qualifies as an Expert Witness

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
According to the Illinois appellate court [5], an expert witness

...is a person who, because of education, training or experience, possesses specialized knowledge beyond that of the average person on a factual matter material to a claim or defense in the litigation.

With regard to medical malpractice litigation, the Illinois Appellate Court in another case added [6]:

Whether the expert is qualified to testify is not dependent on whether he is a member of the same specialty or subspecialty as the defendant but, rather, whether the allegations of negligence concern matters within his knowledge and observation. In establishing a physician's competency to testify, [it must be shown that] the physician is licensed...and is familiar with the methods, procedures, and treatments in either defendant physician's community or a similar community.

A federal appeals court [7] was even more specific on this point:

A medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant. The fact that the physician is not a specialist in the field in which he is giving his opinion affects not the admissibility of his opinion, but the weight the jury may place on it.

The determination of whether a potential expert's opinions are admissible in a court of law is made by the presiding judge [5]. In deciding whether the expert's testimony is admissible, most federal and state court judges have been guided by the so-called Frye rule that was set forth in a federal appellate court decision in 1923 [8]. The court at the time held that, to be admissible, an expert's opinion must be "generally accepted" as reliable in the relevant scientific community. Although certain courts have added that general acceptance does not mean universal acceptance [9], the United States Supreme Court, in the landmark 1993 case Daubert vs Merrell Dow Pharamaceuticals [10], rejected the Frye general acceptance standard as too rigid and uncompromising, commenting that it had sometimes led to "wholesale exclusion of testimony." Instead, the Supreme Court adopted certain federal rules of evidence as a new standard, in order to ensure that expert testimony is "reliable" and "relevant." Among the considerations that bear on whether proposed testimony is reliable, stated the court, are such matters as whether the opinion has been subjected to peer review and publication, and whether it has attracted widespread acceptance in the relevant scientific community. The judge's determination, added the court, should be flexible and based on methodology used, not on the conclusions offered, by the experts.

The United States Supreme Court in the Daubert case then turned its attention to the question of whether this more liberal method of determining admissibility would lead to expert testimony that was inappropriate, unsubstantiated, or unaccepted by the mainstream scientific community [10]:

[There is] apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. [This] seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

The Supreme Court also addressed the opposite concern—namely, that this new standard might lead judges to exclude authoritative opinions [10]:

[Others] suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment—often of great consequence—about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by rules of evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.

It is quite clear from these statements that although it is the responsibility of the judge to determine the admissibility of the expert opinion, it is the responsibility of the jury to determine the weight or credibility of the testimony. This fact was emphasized by an appeals court that was asked, but refused, to reverse a jury verdict in a malpractice case because of alleged inappropriate testimony of an expert witness [11]:

Where conflicting expert testimony is introduced at trial, it is the province of the jury as the trier of fact to resolve the conflict. [The appeals court] will not sit as a second jury and reweigh the evidence or reevaluate the credibility of the witnesses.... People qualified in their fields stated their views and gave their reasons for these opinions. Nothing was said that was not grounded somewhere in the evidence. Not so surprisingly, the plaintiffs' experts did not agree with the defendants' experts—not an unusual situation as trials go.... It was the jury's job to listen to the conflicting evidence and use its best judgment about where the truth could be found. This is what juries do best, and there is no good reason to believe it did not do its job in this case. We will not second guess a jury without a good reason. In this case, we find no reason to doubt the jury's decision.

False Testimony: Legal Repercussions

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
A judge has determined the expert witness to be qualified and the testimony admissible. The jury has weighed the testimony and the credibility of the expert and has reached a verdict based to a large extent on that testimony. Review of the testimony after the lawsuit has been resolved now reveals that the expert's testimony was flawed—or inaccurate—or perhaps even false. Does the plaintiff or defendant, whichever of the two feels damaged because of the testimony, have recourse? Will the court punish an expert who has given false testimony? We shall analyze both questions.

To begin with, determining that an expert witness has misrepresented or lied about scientific data, including radiologic findings, is far from simple, which is illustrated by the case presented at the beginning of this article. The plaintiffs believed that the testimony offered by the defendant's neuroradiology and neurosurgery expert witnesses amounted to misrepresentation, and thus petitioned the Vermont Supreme Court to order a new trial [2]. The attorney for the plaintiffs claimed that he had come across "newly discovered" evidence that would show that the defendant's experts had testified falsely. In its written decision, the Supreme Court noted that the trial court had already refused to order a new trial, ruling that the "new evidence" merely went to the weight and credibility of the expert opinions, an issue that had already been decided by the jury. The court stated:

Both parties presented substantial evidence in support of their respective experts' opinions, which also served to undermine opinions to the contrary. Additional evidence such as the case study now offered by plaintiffs, while potentially helpful, would be cumulative.... Judgment will not be reopened if newly discovered evidence is cumulative and would not change results. Otherwise, any newly discovered evidence in a particular field that incrementally bolsters or rebuts an expert's opinion will justify a new trial, thereby undermining the finality of judgments of cases involving a "battle of experts." Furthermore, we are not prepared to say that an individual medical case that appears to be at odds with an expert's generalized opinion in a highly specialized and recondite discipline such as neuroradiology somehow renders that opinion a "misrepresentation" of fact. Newly discovered evidence merely demonstrating a difference of opinion among experts, and such a scholarly and subjective disagreement, are not a sound basis for finding that defendant's experts lied on the witness stand.

The distinction between a statement that simply reflects a difference of opinion from others and one that constitutes false testimony can be very cloudy. In a case centering on allegations of a worker who contended that he developed neurologic injuries from his exposure to manganese that was present in fumes emitted from his employer's welding rods, a federal appeals court addressed the issue of whether one of the expert witnesses had given false testimony regarding research on welding rod fumes. In reaching its decision, the court recognized the difficulty in distinguishing between a difference of opinion and false testimony [12]:

[The expert] did not testify falsely regarding the results of research.... [The expert] and [the opposing expert] had a difference of opinion as to the results generated by the research on exposing animal lungs to welding fumes, and such a scholarly and subjective disagreement was not a sound basis for finding that [the expert] lied on the witness stand. In essence, the evidence adduced in a proceeding could colorably be construed to support the conclusions [the expert] ascribed to the research, and therefore [the expert's] testimony could not be said to be materially false.

Even if an expert has provided false testimony, courts are loathe to take punitive action against the witness. Witnesses, with rare exceptions, are immune to legal repercussions for reasons stated by another federal appeals court [13]:

Public policy requires that witnesses who are a necessary part of the judicial machinery be privileged against any restraint, excepting that imposed by the penalty for perjury.... The purpose of witness immunity is to ensure that the judicial system functions unimpeded by fear on the part of its particular participants that they may be sued for damages for their role in the proceedings.... The functioning of the [courtroom] tribunal is seriously handicapped if witnesses, whether they be doctors or laypersons, fear liability from statements made by them that have some relation to the litigation.

Courts are far more disposed to the uncovering of false testimony than the punishing of it. The courts clearly attach great importance to the process of cross-examination as the primary means by which the jury can be assisted in determining credibility of a witness's testimony. For that reason courts generally give great latitude to the attorneys conducting cross-examination [14]:

The scope of cross-examination rests within the broad discretion of the trial court. One of the purposes of cross-examination is to test the credibility of the witness. Subject to the trial court discretion in determining the relative value for such purpose, it is proper to allow inquiry into collateral matters revealing the past conduct of a witness which tend to impeach the witness's credibility. Thus, matters tending to show an interest, bias or motive to testify falsely of a witness may be brought out on cross-examination, even if those matters were not brought out on direct examination.

Echoing similar sentiments, another court ruled [15]:

Parties must be allowed to demonstrate an expert's bias or financial interest through cross-examination. The Supreme Court has long recognized that the principal safeguard against errant expert testimony is the opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias, partisanship, or financial interest. It is competent to show that witness is in the employ of one of the litigants regularly or frequently as an expert witness, or to prove fact and circumstances which would naturally create a bias in the mind of the witness for or against the cause of either of the litigants. Matters that may reasonably be expected to color the testimony of a witness or cause him to testify falsely are proper subject of inquiry of any witness by any party. [The witness's] relationship with a professional witness referral agency is a matter that may reasonably be expected to color his testimony or naturally create a bias. Further, a jury could reasonably view a doctor's testimony differently if that doctor is a member of some professional witness referral agency and is essentially an expert for hire rather than if the doctor had been contacted by the party's attorney solely upon the doctor's reputation as a practitioner. Because each trial involves a search for the truth, evidence of witness bias and financial interest should not be concealed from the fact finder, especially when the plaintiff's entire case rests on the testimony of one expert.

Can Experts Who Testify Falsely Be Held in Contempt of Court?

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
Two specific legal maneuvers for punishing experts accused of testifying falsely have been attempted: petitioning the court to hold the witness in contempt of court, and subjecting the witness to a lawsuit alleging professional negligence arising from the witness's expert testimony. Civil contempt proceedings are designed to compel the contemner into compliance with an existing court order or to compensate the complainant for losses sustained as a result of the contumacy [12]. In a recent case, the United States Court of Appeals upheld a lower court's denial of one party's motion to hold the other party's expert witness in contempt. In rather fascinating language that suggests that courts may actually countenance rather than condemn false expert testimony, the court stated [12]:

The trial court denied the motion on the grounds that the nature and purpose of civil contempt does not warrant applying it to a witness who testified falsely at trial. The court ruled that even assuming the allegations were true, the mere provision of false or perjurious testimony does not constitute civil contempt without some added showing that the testimony obstructed the court's authority to conduct orderly proceedings or to perform its duties. The court reasoned that to be subject to civil contempt, [the expert] must have disobeyed an explicit court order or must have otherwise defied or obstructed the court's ability to conduct orderly proceedings. The court found that [the expert's] testimony, even if false, failed to satisfy the standard for three reasons. First, the court never ordered [the expert] to testify truthfully. Although witnesses swear an oath to testify truthfully at trial, this oath is not tantamount to a court order. Second, since the essential function of a trial is "truth-finding," the provision of false testimony at trial could not be said to significantly impede that function. The court reasoned that by their very nature, trials contain conflicting and oftentimes diametrically opposed testimony; however, this does not ordinarily affect a court's ability to conduct orderly trials. Third, the court reasoned that an essential justification for the measure of civil contempt is to give courts a tool for forcing obedience to their orders. The court could not order [the expert] to come back and testify "truthfully," thereby restoring "order" to a trial that was already concluded.... To hold a party or witness in civil contempt, the court must be able to point to a decree from the court which sets forth in specific detail an unequivocal command which the party or witness in contempt violated.... The court never ordered [the expert] to testify truthfully. The expert violated no court decree ordering him to take or not to take certain action. In the absence of such an order, and any conduct in violation thereof, we cannot say that the court erred in denying the contempt motion.

The court went on to touch on its impotency with regard to punishing perjurious testimony:

As broad as the power of civil contempt may be, it does not include the power to punish for the crime of perjury.... A witness cannot be held in contempt for perjury unless it be shown that some further element of obstructing the court's authority be proven.

The court then emphasized that if it were to punish expert witnesses for testifying untruthfully,

...the freedom of the citizen when called as a witness in court would be gravely imperiled.... False testimony alone does not...[justify] holding a party or witness in contempt. All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore, it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process.... For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact-finding tribunal must hear both truthful and false witnesses.

Finally, the court concluded:

Indeed, to hold a witness liable...merely because he or she testified falsely at trial would violate the longstanding common law rule that parties and witnesses are immune from subsequent damages liability for their testimony in judicial proceedings.

Suing Experts for "Witness Malpractice"

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
Whether an expert witness who offers false testimony at trial can be sued for malpractice by the attorney or party who retained the witness is not totally clear. In one case an expert witness retained to discuss lost profits misinterpreted the data and gave financial testimony that caused the party retaining the witness to lose the case. The witness later conceded that his calculations were wrong. The retaining party sued the witness for negligence. The attorney defending the witness asked the court to dismiss the case because of the doctrine of witness immunity. The matter eventually reached the Pennsylvania Supreme Court, which ruled that the witness could be sued for negligence [16]:

The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.... The plaintiff could not recover even if the witness knew the statements were false and made them with malice.... A witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by fear of subsequent liability... A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps pay damages, might be inclined to shade his testimony in favor of the potential plaintiff to magnify uncertainty, and to deprive the finder of fact of candid objective and undistorted evidence.... It is imperative that an expert witness not be subjected to litigation because the party who retained the expert is dissatisfied with the substance of the opinion rendered by the expert. An expert witness must be able to articulate the basis for his or her opinion without fear that a verdict unfavorable to the client will result in litigation....

We are unpersuaded, however, that those policy concerns are furthered by extending the witness immunity doctrine to professional negligence actions which are brought against an expert witness when the allegations of negligence are not premised on the substance of the expert's opinion. In this case [the expert] had been negligent in performing the mathematical calculations required to determine lost profits. The goal of ensuring that the path to truth is unobstructed and the judicial process is protected...is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion. The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful careful prudent members of their profession. Therefore, we find that the witness immunity doctrine does not bar the professional malpractice action against [the expert].

The court cautioned, however, that its ruling has limited application and emphasized that an expert witness may not held liable "merely because his or her opinion is challenged by another expert or authoritative source" [16]. Differences of opinion will not suffice to establish liability of an expert witness for professional negligence, the court concluded.

The decision of the Pennsylvania Supreme Court was split, determined by a narrow 3-2 vote. The two dissenting justices issued their own written opinion [16]:

We would continue to adhere to our established rule that there is no civil liability for statements made by witnesses in a legal proceeding. This straightforward rule advances the laudable and long-recognized policy goal of encouraging the witness' complete and unintimidated testimony in court.... To allow a party to litigation to contract with an expert witness and thereby obligate the witness to testify only in a manner favorable to the party, on threat of civil liability, would be contrary to public policy.

Disciplinary Actions by Expert's Professional Society

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
Although from the foregoing it is now quite evident that courts will most likely maintain their reluctance to take punitive action against an expert witness who has testified falsely, the same cannot be said of professional organizations. In a well-publicized case, a United States Circuit Court of Appeals in 2001 upheld the right of the American Association of Neurological Surgeons to suspend one of its members after a hearing showed that the member had given improper testimony as an expert witness at a medical malpractice trial [17]. Over the previous 15 years, the neurosurgical association had reviewed about 50 members for possible misconduct in expert witness testimony and had suspended or expelled 10 members [18]. Only one, however, brought a lawsuit against the association in response to the suspension. In a rather blistering attack on the neurosurgical expert witness, the court unequivocally backed the actions of the association [19]:

The complaint [was] that the Association acted in bad faith because it never disciplines members who testify on behalf of malpractice defendants as distinct from malpractice plaintiffs, and that it is against public policy for a professional association to discipline a member on the basis of trial testimony unless the testimony was intentionally false.... Since [the neurosurgery expert] plainly had not attempted to sound the opinion of his profession to determine whether a majority of the nation's several thousand neurosurgeons agreed with his unorthodox view, there is little doubt that his testimony was irresponsible and that it violated a number of sensible-seeming provisions of the Association's ethical code. These include provisions requiring that a member appearing as an expert witness should testify "prudently," must "identify as such, personal opinions not generally accepted by other neurosurgeons," and should "provide the court with accurate and documentable opinions on the matters at hand"...

Membership in the Association is not a precondition to the practice of neurosurgery.... [The expert] continues to practice neurosurgery notwithstanding his suspension and subsequent voluntary resignation from the Association.... Indeed, despite the suspension, he continues to testify extensively as an expert witness in medical malpractice cases. True, his income from testifying has fallen to 35% of what it was before the suspension, when it was more than $220,000 a year. [The expert] describes this drop in income as "disastrous" and "catastrophic," but that is a hyperbolic characterization.... This is merely as it were [the expert's] moonlighting income, income from a sideline to his primary profession, which is that of a neurosurgeon, not an expert witness (he does not claim the dubious title of "professional expert witness")....

[The expert] argues that the threat of such sanctions is a deterrent to the giving of expert evidence and so a disservice to, indeed an interference with, the cause of civil justice. We disagree and think the courts of Illinois would likewise; this kind of professional self-regulation rather furthers than impedes the cause of justice.... The Association had an interest—the community at large had an interest—in [the expert's] not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves.... If the Association finds in a proceeding that comports with the basic requirements of due process of law that a member of the Association gave irresponsible expert testimony, that is a datum that judges, jurors and lawyers are entitled to weigh heavily.... There is a great deal of skepticism about expert evidence. It is well known that expert witnesses are often paid very handsome fees, and common sense suggests that a financial stake can influence an expert's testimony, especially when it is technical and esoteric and hence difficult to refute in terms intelligible to judges and jurors. More policing of expert witnesses is required, not less.

Unlike the American Association of Neurological Surgeons, the ACR has as yet never taken disciplinary action against any of its members for allegedly giving false testimony as an expert witness. Readers should be reminded, however, that section 2 of the Code of Ethics of the ACR [20] states the following:

In providing expert medical testimony, radiologists and radiation oncologists should exercise extreme caution to ensure that the testimony provided is non-partisan, scientifically correct, and clinically accurate.

In the past 18 months several complaints from members alleging that other members have testified falsely as expert witnesses have been lodged with the College. The College is studying these complaints and is in the process of determining what, if any, action it should take (Janower M, personal communication).

In addition to more aggressive action being taken by professional societies to curtail false testimony of expert witnesses, there is emerging a trend whereby state medical licensing boards are becoming more active in disciplining physicians for misconduct as an expert witness.

State Medical Licensing Boards

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
A little more than a decade ago, two medical licensing boards, one in the District of Columbia and the other in Missouri, attempted to discipline physicians for testifying falsely as expert witnesses. Both cases were appealed to local appellate courts with diametrically opposite results. In the District of Columbia case [21], an emergency medicine physician was accused by the Maryland Commission of Medical Discipline of lying about his credentials while testifying as an expert in a medical malpractice case. The physician had testified that he was board-certified in thoracic surgery, that he had ranked first in his medical school class, and that he had graduated Phi Beta Kappa from Williams College. All statements were false. As a result, the District of Columbia Board of Medicine charged the physician with "immoral conduct" and, after a hearing, issued a reprimand and levied a fine against the physician. The physician appealed, claiming that testifying as an expert witness did not constitute the practice of medicine. Ruling that in preparing for his expert testimony the physician had to examine "X-rays and medical records," acts that constituted "an investigation and analysis of the nature of a patient's condition," the appellate court found that the giving of expert testimony did indeed constitute the practice of medicine. The court affirmed the board's disciplinary action.

In the Missouri case [22], the outcome was different. There, the Missouri Board of Registration for the Healing Arts sought to discipline an otolaryngologist for "incompetency, misconduct, gross negligence, fraud, and misrepresentation or dishonesty in the performance of the functions or duties of a licensed or regulated profession" arising from the physician's testifying falsely as an expert witness. Specifically, the physician had testified in one case that he had passed his specialty boards on his second attempt, and then in a second, unrelated case he had testified that he had passed his boards on the fourth attempt, denying that he had ever testified previously that he had passed on his second attempt. In truth, the physician had passed his board examinations on his fifth attempt. Although acknowledging that the physician's conduct was inappropriate, the Missouri appellate court nonetheless ruled that the physician could not be disciplined by the Board of Registration because it determined that the giving of expert testimony did not constitute the practice of medicine. "The physician did not diagnose and treat the sick merely by giving expert testimony as a nontreating physician," concluded the court.

In July 2002, the North Carolina Medical Board revoked the license of a neurosurgeon who testified as an expert witness in a medical malpractice case. The board found that the neurosurgeon had engaged in unprofessional conduct by misstating facts and the appropriate standard of care [23]. The Federation of State Medical Boards is unaware of whether other state boards have revoked any medical licenses because of physicians' improper expert testimony, but some of its members said they would take action against physicians who give false testimony as medical experts [23]. The American Medical Association has suggested that medical expert opinions should be subject to peer review and physicians should be disciplined for false statements [24]. In Illinois, the insurance company that provides malpractice coverage for more than 50% of the state's physicians has stated that it "has been and continues to be vigilant when it comes to monitoring the testimony of expert witnesses working on behalf of plaintiffs' attorneys," and that it "will not hesitate to notify the Illinois Department of Professional Regulation regarding physicians who provide inaccurate, misleading or otherwise unsound medical testimony against its insureds" [25].

Summary and Conclusions

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 
Because juries are composed of lay people who do not typically possess scientific or medical knowledge, the law looks to persons who do have expertise to come into the courtroom and instruct the jury about the subject at issue [26, 27]. Such persons are called expert witnesses, and when the lawsuit being tried concerns allegations of medical malpractice, the expert witnesses are physicians whose duties are to establish the applicable standard of care and to offer an opinion as to whether a defendant physician has deviated from that standard. Physicians have an ethical duty to assist in the administration of justice, and serving as an expert witness is one way to fulfill this obligation [23].

The medical expert witness must not be an advocate or a partisan in a legal proceeding and should testify honestly and truthfully [28]. In the real world, however, complying with these ideals and achieving these lofty goals are difficult. The everyday practice of medicine is considerably different from the giving of medical testimony in court. As Kassirer and Cecil [29] have pointed out:

Unlike the cooperative setting in medicine where all parties are seeking an accurate diagnosis and appropriate treatment, medical testimony in the courtroom exists in an adversarial setting in which each party seeks to present its strongest case. By its very nature, this clash invariably leads to conflicts among experts representing both sides.

In the midst of a highly charged and hotly contested legal adversary proceeding, the physician expert witnesses retained by the plaintiff's attorney and the defense attorney will disagree, sometimes forcefully if not bitterly [30]. The point at which the characterization of an expert's opinion changes from simple disagreement to outright falsification is murky. Even misstating one's credentials, an act that would be considered false testimony to many observers, could be ascribed to innocent forgetfulness by others.

Defining the standard of medical care in any specific case is likewise murky. Standards of radiologic or nonradiologic medical care are not formulated specifically or exclusively from the government, professional societies, scientific literature, or educational seminars [31]. Rather, the formulation of the standard of care is a decentralized process, derived from an amalgamation of all these sources. The standard in a given case is enunciated in a courtroom by expert witnesses, and what constitutes an acceptable standard of care to one expert may be totally rejected as such by another expert. Furthermore, conduct that is deemed by one expert witness to fall within the standard of care will almost certainly be considered by another expert as breaching the standard of care. Add to this the fact that, as pointed out by Marsha Angell [32], former executive editor of the New England Journal of Medicine, expert witnesses in court are expected to offer an educated guess, not to produce evidence, and are "selected by the contesting lawyers, paid by them, and their testimony is rehearsed in advance—circumstances unlikely to ensure objectivity." No wonder then, as one legal author has lamented, testimony of medical expert witnesses should be viewed with "a healthy dose of skepticism" [33].

Let us add one more ingredient to the concoction. The defendant physician whom an expert witness has called negligent is apt to react with hostility toward the expert witness and may very possibly characterize the expert's testimony as false, regardless of whether it is or is not. Against this backdrop, the determination of whether an expert's specific testimony is false can be extremely difficult.

What, if any, punitive action can be taken against an expert witness whose testimony has been found to be false? As has been discussed, the thought of penalizing an expert witness for providing false testimony in a legal proceeding is generally viewed by the courts as abhorrent. Courts have consistently held that expert witnesses should be immune to judicially administered penalties, repeatedly ruling that if experts are subjected to such action, qualified physicians and other scientists will refuse to participate and assist in the administration of justice. The disinclination of the courts to discipline experts indulging in false testimony does not extend to state medical licensing boards and professional medical societies, however.

At least two state medical licensing boards have succeeded in reprimanding or revoking a physician's medical license for the giving of false expert testimony, and others are contemplating similar action. The American Association of Neurological Surgeons has successfully expelled one of its members for giving false expert testimony, and the ACR and other specialty organizations possess the machinery to undertake similar action.

Medical malpractice litigation remains a serious conundrum to radiologists and nonradiologist physicians alike. A perception exists in the radiology community that certain expert radiology witnesses bear false witness against their neighboring radiologists. The ACR Standard on the Expert Witness in Radiology [3] calls for expert witnesses to be as impartial and objective as possible. Compliance with this mandate and adherence to the Ninth Commandment will go a long way toward alleviating the burden of malpractice litigation and resolving the malpractice conundrum.

References

Top Introduction The Case False Testimony and the... Role of the Judge... False Testimony: Legal... Can Experts Who Testify... Suing Experts for "Witness... Disciplinary Actions by Expert's... State Medical Licensing Boards Summary and Conclusions References

 

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