The debate swirling around medical negligence litigation continues. The medical profession, consumer and patient advocacy groups, think tanks, the insurance industry, and the trial bar all continue to provide diverse opinions on this issue. The notion that professional liability lawsuits have created a so-called crisis has been around for decades1. Throughout that time, many people have addressed the association between medical malpractice litigation and various undesirable sequelae.
The high cost of insurance alone can have devastating consequences, but there are other ramifications. Some insurance companies have decided simply to stop offering policies in certain jurisdictions where medical malpractice plaintiffs have had success2. Companies have also been selective in their decision as to which specialties will be offered coverage. In addition, certain specialties deemed to be high risk bear the burden of increased premiums3,4.
The unavailability of coverage and the high cost of premiums have been blamed for shortages of physician care in certain areas with high rates of litigation5,6. It has been argued that this situation drives physicians away from areas where postgraduate training was completed, leading to a so-called brain drain in some metropolitan areas7,8. Others have observed that physicians with established practices have fled certain areas for reasons wholly related to professional liability9.
Because of concerns regarding lawsuits, some believe that candor between the physician and the patient has been hindered. There is fear that absolute transparency can and will promote the incidence of litigation10. Leaving aside ethical considerations, most agree that the inhibition of candor will have an ongoing and deleterious effect on patient safety11,12.
Under the current medicolegal system, some believe that physician conduct is subjected to unfair and inconsistent analysis. The criteria for professional negligence are set on a case-by-case basis at every trial through the testimony of witnesses qualified by the court to offer opinions as experts13. The bar for expert qualification is often set rather low14, and physician defendants may find themselves criticized by doctors whose practice and experience differ substantially from their own. Consideration must also be given, however, to the possibility that existing standards designed to protect the physician defendant (e.g., the American Academy of Orthopaedic Surgeons [AAOS] Standards of Professionalism for Orthopaedic Expert Witness Testimony) may at the same time intimidate the potential plaintiff's expert witnesses and thus impede justice in cases of true malfeasance. The potential negative consequences of violating standards for expert witness testimony may be enough to dissuade qualified expert witnesses from testifying on behalf of the plaintiff (the patient).
As a response to these important concerns, lawmakers have considered various methods of approaching the controversy. Many states have enacted some measure of tort reform—some with a focus on medical negligence and some more broadly based. The process continues to evolve, and proposals continue to be offered in Congress and state legislatures. Innovative approaches have been met with various levels of success and support, and no shortage of analysis. In this symposium, held at the Annual Meeting of the American Orthopaedic Association (AOA) in June 2009, the evolving role and oversight of medical expert testimony was considered. Mechanisms for policing against unfair and inconsistent expert witness testimony, including the professional compliance programs of the American Association of Neurological Surgeons (AANS) and AAOS, as well as the role of the medical expert witness in the Canadian legal system, were discussed.
The testimony of expert witnesses carries enormous importance in a medical malpractice trial. Expert witnesses set the standard of care for the jury. Under common law, courts had wide latitude in permitting witnesses to testify as experts, sometimes requiring only a "reasonable pretension" to expertise in the subject matter at hand14. More recently, steps have been taken to tighten the requirements a witness must satisfy before being permitted to testify in a medical negligence case. More states now require that the expert have the same or similar board certification as the defendant physician. There are also requirements for similarity in subspecialty training when applicable15. In addition, courts and legislatures are more tightly regulating testimony by retired physicians. Statutes may require that the witness engage in active practice within a certain period of time (e.g., five years) before expert testimony is offered15.
The AANS Professional Conduct Committee was established in 1982 to evaluate disputes between AANS members. Prior to 1982, such complaints had been managed by the AANS Board of Directors on a rather ad hoc basis. Because of meeting frequency and full agendas, this proved to be an unsatisfactory forum for providing thorough evaluations of complaints. Although the Professional Conduct Committee had not been established specifically to address expert witness problems, most of its work now comprises allegations of improper testimony in medical malpractice lawsuits.
Expert testimony obviously must be evaluated under some common standard if adjudications of complaints are to be fair and consistent. In 2003, the AANS adopted a reformatted set of rules for its members who provide expert medical opinions in the legal arena. A copy of these rules can be found in the Appendix16.
Complaints received from AANS members are forwarded to the Professional Conduct Committee counsel who notifies the accused member (the respondent) of the complaint. When the respondent's answer to the complaint is received, the material is sent to the members of the Professional Conduct Committee, which currently has seven members. A prima facie determination, either that the complaint lacks merit and should be dismissed or that it has sufficient merit to warrant a hearing, is made by the committee. Hearings are tightly structured with both parties allowed thirty minutes for an oral presentation and ten minutes each for cross-examination, after which the committee members almost invariably have questions directed to one or both parties. Attendance at the hearing is limited to committee members, the parties (with legal counsel if desired), witnesses, counsel to the Professional Conduct Committee, and a court reporter who prepares a written transcript of the entire proceeding. Immediately following the hearing, the committee meets in executive session to arrive at a conclusion and recommendation. A written report that includes the background of the dispute, the findings of the committee, and recommendations to the AANS Board of Directors is then prepared by the committee.
Twice a year, the committee chairman reports to the AANS Board of Directors and presents the cases with recommendations for dismissal or for some sanction. The board usually follows the recommendation of the Professional Conduct Committee but makes its own decision, and this decision has varied from the committee's recommendation about 20% of the time. A member sanctioned by the AANS Board of Directors may appeal to the general membership, and several such appeals have taken place. Once the action is final, the names of the sanctioned members are published in the AANS magazine, which is distributed to all AANS members.
To date, four lawsuits have been filed against the AANS by sanctioned members. The first of these was filed in the New Jersey State Court system, and the AANS was dismissed at the trial level. This was ultimately appealed to the New Jersey Supreme Court, which affirmed the dismissal. All other lawsuits have been filed in the federal courts. The most important of these suits was Austin v AANS, in which the AANS was dismissed at the trial level17. The dismissal was appealed to the Seventh Circuit Court of Appeals, which affirmed the dismissal and wrote an extensive published opinion strongly supportive of the AANS Professional Conduct Program. The Seventh Circuit decision was appealed to the U.S. Supreme Court, which denied certiorari. All of the cases decided to date have resulted in dismissal of the AANS. Programs similar to that of the AANS Professional Conduct Committee have now been adopted by several medical professional societies and associations.
The Canadian Medical Protective Association (CMPA), a mutual defense organization, was founded at the Annual Meeting of the Canadian Medical Association held at Winnipeg, Manitoba, in 1901. While many other countries have seen their medical liability systems endure periods of crisis or failure, the Canadian system continues to successfully balance the imperatives of (1) effective physician accountability, (2) appropriate compensation for patients injured through negligent medical care, and (3) health-care risk reduction. As the preferred provider of medicolegal liability protection and as a committed proponent of medical risk reduction, the CMPA has made, and continues to make, a valuable contribution to this success.
The primary interest and concern of the CMPA has always been, and continues to be, protecting the professional integrity of its member physicians. For this reason, a vigorous defense is always mounted for a member who has not been negligent and for whom a successful defense is possible. The CMPA will not contemplate a settlement on the basis of economic expediency. However, when a review of the medical facts reveals that shortcomings in a doctor's work have resulted in harm to a patient, the CMPA will arrange for a financial settlement that is fair to all concerned and will be negotiated as early as possible. For the most part, however, settlements are not considered until expert opinion has been obtained as to whether the work of the defendant doctor is defensible.
To put this in perspective, approximately 65% of all actions commenced against physicians are dismissed or abandoned short of trial. Each year, between 25% and 30% of all cases are settled. Most of the 5% to 10% of cases that proceed to trial are successfully defended.
Members can contact the CMPA for advice on a broad range of medicolegal issues arising from their professional work in Canada. They receive the benefit of advice from people who understand their situation—experienced medical officers who are physicians with clinical practice backgrounds in various practices and specialties. When warranted, legal assistance is provided for matters arising from a member's professional work. These include the following: civil legal actions, regulatory authority (College of Physicians and Surgeons) complaints, investigations and disciplinary hearings, coroners’ inquests, billing audits or inquiries, hospital privilege matters, criminal proceedings, some general contract matters, privacy legislation breaches, privacy complaints, and human rights complaints.
When members face a medicolegal action, they are eligible for assistance in the form of legal representation and payment of legal costs, judgments, or settlements to compensate patients when it is determined they have been harmed by negligent care. The CMPA works with an independent general counsel and with selected legal firms in each province and territory (provincial counsel) to ensure the support necessary to provide the best possible assistance to members. In general, members may be eligible for CMPA assistance when the medicolegal matter arises from the member's medical professional work. Unlike most insurance policies, CMPA protection is occurrence-based. This means that a physician member continues to be eligible for assistance, even after he or she has ceased practicing medicine. A physician is eligible to receive assistance as long as the care in question was provided during the period for which membership fees were paid, regardless of when the claim may arise.
Attendees at the Annual Meeting of the AOA in 2009 were asked a series of questions that pertained to medical malpractice. With regard to serving as a medical expert, 37% of the attendees reported serving as a medical expert for the plaintiff and 70% of the attendees reported serving as a medical expert for the defendant in a medical malpractice case. Among the audience, 25% had never been named in a malpractice lawsuit, 66% had been named between one and five times, and the remainder had been named more than five times. A much smaller number of attendees had been named in a medical malpractice lawsuit that went to trial; 75% had never gone to trial, 23% had gone to trial one or two times, and the remainder had gone to trial greater than two times.
Following this symposium, the audience was asked what the best system was for policing expert medical witness testimony. Forty percent chose the AAOS Professional Compliance Program, 28% chose the Canadian Medical Protective Association, 14% chose the AANS Professional Conduct Program, 1% chose the British system, and 19% chose "none of the above." With regard to the choice of a lawyer, 35% of the attendees used the same lawyer as the other codefendants in the case and 35% found their own lawyer. Not surprisingly, 88% of the attendees thought that physician conduct was subjected to unfair and inconsistent analysis and that the process is in need of reform, whereas 12% thought that the current American system was fair and adequate.