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The scrupulous expert witness

American Medical News is behind a pay screen these days, so we no longer link to them very often, but the first few paragraphs of this story are free and lead off with an arresting and, alas, very likely anomalous anecdote:

When New York dermatopathologist A. Bernard Ackerman, MD, is called to testify as a medical expert witness, he refuses to know which side the lawyer represents.

It is his way of remaining objective when he evaluates a case. In addition, the academic clinician typically previews his presentation of the facts and his opinion for a student audience, as a way of holding himself accountable.

"I want to let the facts speak for themselves," said Dr. Ackerman, who has testified equally for the defense and the plaintiff in medical liability cases and in other cases where medical expertise is needed, such as criminal cases. Sticking to the facts, he says, prevents a cross-examining lawyer from tripping him up about his opinion being consistent.

That's not always the typical experience. Dr. Ackerman is among many doctors and lawyers who say they too often see "hired gun" experts testify in areas beyond their qualifications, leading the judicial process astray.

"What if that physician made the same statements in a classroom rather than a courtroom? What would be the judgment of his peers then?" Dr. Ackerman asked.

In response to the problem, states in recent years have ratcheted up efforts to rein in false medical experts. They have adopted legislation requiring experts to be qualified or have stepped up state medical board oversight over who testifies and what they say.

A majority of states have laws that require medical experts be licensed and have training and expertise in the same specialty as the defendant physician or in an area directly related to the case at hand. At least 10 states this year are pushing for even tighter measures, according to American Medical Association data. For example, North Carolina and Missouri are seeking to require that the testifying physician be actively practicing in a related field at the time he or she testifies or when the claim arose. Missouri's legislation also would give state medical boards the authority to discipline unethical experts. Oregon would require experts to disclose information about other cases in which they've testified and about their compensation.

The full article is available to AMA members and AMNews subscribers (via KevinMD).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.