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Rx: Hired-gun control



"Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. ... Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they're planning to arm physicians with the tools necessary to do the job." (Tanya Albert, "Group aims to weed out deficient medical expert witnesses", American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff's bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. "Doctors whose testimony does not pass muster can be suspended or expelled from the societies." Critics from the plaintiff's bar say the medical societies will not conduct objective evaluations because of their members' interest in retaliating against those of their number who testify against fellow doctors. "The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review," counters AMA president Donald J. Palmisano. "If someone comes into court and gives junk science, we don't want fraudulent testimony in court." Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit's influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that "furthers rather than impedes the cause of justice." (Adam Liptak, "Doctors' testimony under scrutiny", New York Times, Jul. 6).

Posner's opinion was blunt: "By becoming a member of the prestigious American Association of Neurological Surgeons, a fact he did not neglect to mention in his testimony, [Michigan neurosurgeon Donald C.] Austin boosted his credibility as an expert witness," he wrote. "The association has an interest -- the community at large has an interest -- in Austin's not being able to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves." (opinion Jun. 12, 2001). MedRants has more (Aug. 10) and the AntiRealist (Jul. 6) is reminded of the problem with 20/20 hindsight in expert testimony on mammogram-reading. (Cross-posted from Overlawyered, where it ran Sept. 9, 2003)

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.