The Pediatrician Participation and
as
Expert Witness
Reaction to This
Douglas A. Boenning, MD; Steven M. Selbst, MD; \s=b\ Little is known about the qualifications and motives of pediatricians who provide expert witness testimony. Pediatricians in Pennsylvania were surveyed anonymously to learn more about this practice. Two hundred fifty-five (49%) of 520 pediatricians responded, and 126 of these physicians had provided expert testimony at some time. Fully affiliated medical school faculty members were more likely to act as expert witnesses than were other pediatricians. Seventy-seven (61 %) did so to defend a fellow physician. Only eight (6%) were listed with an organization that provides expert witnesses. Pediatricians were selective
about their involvement as expert witnesses, and 96 (76%) had refused to give testimony at some time. Most were paid an hourly rate, which was in keeping with charges for medical consultation or lecturing. More than 80% of respondents were unhappy with the present system of procuring expert witnesses.
(AJDC. 1992;146:1107-1109)
about the quality many years there has been of testimony given by so-called expert in For medical this there have concern
witnesses
concern, malpractice cases. Despite been few studies examining the qualifications and motives of those who provide such testimony. Brent1 reported that 24% of those giving testimony in medical negligence law¬ suits were practitioners who had testified fewer than three times previously. Another 31% were academicians who
had testified on more than three occasions. The source of these statistics is not well defined, and the motives of these witnesses were not addressed. More recently, a survey of medical school pediatrie chairpersons found that most pediatrie departments nei¬ ther encourage nor discourage faculty members to testify.2 Most of these chairpersons had no idea of how many fac¬ ulty members had testified in the past, and few had formal policies in place about faculty member participation in courtroom proceedings. Despite this, almost all were in some agreement concerning the distribution of income re¬ ceived by faculty members for giving testimony, and most required that the proceeds be shared between individual faculty members and the department. We conducted this study to further describe the role of pediatricians as expert witnesses in medicolegal cases. We wanted to determine which pediatricians gave such testi¬ mony, the reasons for deciding to testify or not to testify,
Accepted for publication May 6, From the Division of General
1992.
Pediatrics, The Children's Hospital of
Philadelphia, University of Pennsylvania School of Medicine. Reprint requests to the Emergency Medical Trauma Center, Children's National Medical Center, 111 Michigan Ave NW, Washington, DC 20010 (Dr Boenning).
Lorraine H.
Activity
Freed; Ashley M.
Groves
and how often testifying was done. We also wanted to learn if these pediatricians were satisfied with the current system of obtaining expert testimony. METHODS In early 1988 an anonymous survey was mailed to 520 pedia¬ tricians in Pennsylvania. One hundred forty (27%) of the names were selected from the faculty of The Children's Hospital of Phil¬ adelphia (Pa), some as part of a pilot survey. The names of the other 380 participants (73%) were selected from the 2987 Fellow¬ ship Directory of the American Academy of Pediatrics. Every third physician listed in the Pennsylvania section of that directory was mailed a questionnaire with a stamped return envelope. This questionnaire contained some items that required a "yes" or "no" response, some with multiple choices (more than one an¬ swer acceptable), and some that were open ended. The survey asked respondents if they had been involved in providing testi¬ mony (encompassing court appearances, depositions, and written and verbal opinions) and why they did or did not give such tes¬ timony. It also asked about the medical issues of the cases involved. The survey addressed remuneration for these services, the qualifications of the physician witness, and their satisfaction with the system of procuring expert witnesses. Each physician was told of the plans to publish the anonymous information in a medical journal.
RESULTS Questionnaires were returned from 255 (49%) of 520 physicians. Of these, 45 (18%) were from The Children's Hospital of Philadelphia. Of all those who responded, 126 (49%) had voluntarily provided opinions to attorneys or insurance companies about a medicolegal case. This was done most often (77 [61%] of 126 respondents) to defend a fellow physician (case reviewed for the defense attorney) or to defend a patient or family (54 respondents [43%]) (case reviewed for the plaintiff's attorney). Also, 40 (32%) physicians believed that providing an opinion was neces¬ sary to help ensure high standards of medical care. Table 1 lists additional reasons for providing an opinion in med¬ icolegal cases. Thirty-eight (30%) of those who gave testi¬ mony had done so exclusively for the defense, six (5%) for the plaintiff, and 82 (65%) for both defense and plaintiff. Interestingly, 73 (58%) of those who had given testimony had been named as a defendant in a medical lawsuit. Only eight (6% ) of the respondents who had provided tes¬ timony were listed with an organization that locates expert witnesses, and most respondents (74 [59%]) received case work through recommendations of colleagues. Sixty (48%) of 126 witnesses said that another attorney had recom¬ mended them for testimony. Only 63 (50%) of these physi¬ cians had testified in court, but 76 (60%) had provided dep¬ ositions and 71 (56%) had provided written or telephone re-
Downloaded From: http://archpedi.jamanetwork.com/ by a Monash University Library User on 06/18/2015
Providing Opinions in Medicolegal Cases
Table 1.—Reasons for
No. (%) of
Reason*
Defend fellow
physician Help patient/family Ensure high standards of care Profitable undertaking Obligation as one of few experts in field
Defend a hospital Personal interest in case Curious about legal system
Expected by department one answer acceptable.
Table
of Cases in Which 2.—Principal Medical IssuesProvided Expert Testimony Was No. (%) of
Respondents
Reason*
(n=126)
Medication
77(61) 54 (43) 40 (32) 31 (25)
Delay
82 (68) 55 (46)
error
in
diagnosis Incorrect diagnosis
42
Poor outcome at birth
37 (31 )
Failure 30 (24)
more
to
Inappropriate treatment
Surgical mishap
ports in medicolegal cases. The medical issues of the cases in
Other
testimony was provided are listed in Table 2. Ninety-six (76%) of those who had given testimony
which
noted that they had also refused to do so in some instances. Physicians refused cases because they did not believe there was a legitimate case (58 [60 % ] of 96 respondents), they had concerns about the attorney's motives (42 respondents [44%]), or they did not believe that they were qualified ex¬ perts for such a case (41 respondents [43%]). Table 3 lists other reasons cited by physicians who refused to partici¬ pate in a particular case. Thirty-two (33%) of the respon¬ dents avoided cases in certain geographic locations, and 14 (14%) avoided cases involving certain institutions. Most pediatricians (80%) who had given expert testi¬ mony were paid an hourly rate. Of those 101 physicians, 43 (43%) were paid between $100 and $200 per hour. An¬ other 21 (21%) charged more than $200 per hour, and 19 (19%) charged less than $100 per hour. Eighteen (18%) re¬ sponded that they were sometimes not paid for expert testimony. Only one physician said that he or she received a contingency fee, but 23 (18%) of 126 were paid a flat rate, usually $500 to $1000 per case. Only 34 (27%) had to report these earnings to a superior or partner, and 14 (11%) had to share these earnings with a partner. Another 20 (16%) gave part or all of their earnings in these cases to their department, but 91 (72%) kept such revenue for per¬ sonal use. More than 90% of those who gave testimony said their fees from this activity accounted for less than 5% of their annual income. Case preparation involved about 8 hours of the physician's time per case, and was usually ac¬ complished during nonbusiness hours. Twenty-one per¬ cent of witnesses gave testimony in more than two cases per year, and these physicians were more likely to have a prior association with a law firm than others (P=.006). Of the 129 (51 % ) of 255 survey respondents who had never provided an opinion, 103 (80%) said they were never con¬ tacted to do so. In addition, 18 (14%) said they did not want to get involved with the legal system, and 14 (11%) reported that they refused to provide such opinions. Only nine (7%) said they did not consider themselves an expert, but 13 (10%) said they were too busy to provide opinions in legal cases. The mean age of all respondents was 48 years, and those who provided testimony did not differ significantly in age from those who did not. One hundred thirty (51%) of those who responded to the survey were in private practice and 71 (28%) were hospital based. Only eight (3%) worked in
providing
*More than
(20) (20) 22 (18) 18(15) 18(15) 13 (11) 11 (9) 9 (8) 24
24
Injury case/long-term prognosis Congenital anomalies Severe illness/poor outcome
*More than
(35)
transfer child to
appropriate hospital
Child abuse
24(19) 17 (13) 14(11) 9 (7)
Respondents
(n=120)
one answer
acceptable.
Table 3.—Reasons to Refuse to Participate in Particular Legal Case No. (%) of Reason* Not Not
an
58 (60)
attorney's
motives
No time Knew defendant Wished not to get involved Previous bad experience one answer
(44) (43) 33 (34) 24 (25) 16(17) 5 (5) 42
41
expert
*More than
Respondents
(n=96)
legitimate case
Concern about
a
acceptable.
health maintenance organization and 15 (6%) in a clinic. Seventy-four (29%) of 255 respondents were fully affiliated faculty members of a medical school and 71 (28%) had clinical faculty appointments. In addition, 48 (19%) were clinical affiliates at a teaching hospital and 77 (30%) were a
attending physicians at a community hospital. Many physicians in both private practice and academic medicine had participated as expert witnesses. Those who were fully affiliated medical school faculty members were more likely to act as expert witnesses (50 [68%] of 74) than were other pediatricians (81 [45%] of 181) (P=.003). How¬ ever, fully affiliated faculty members were not more likely than other respondents to participate in more than two cases per year. Of the 255 responding physicians, 115 (45%) considered themselves to be pediatrie subspecialists, but only 89 (35%) had subspecialty board certification in their area of expertise. Those who testified were no more likely to be
board certified than those who had not testified. The responding physicians had published a mean of 19 original research reports and seven chapters, reviews, or editorials. Those who had been expert witnesses did not have more publications than those who had never pro¬ vided testimony. However, 30 pediatricians who identi¬ fied themselves as true experts (said they provided testi¬ mony because they were one of few experts in their field) averaged 37 publications compared with a median of four publications for other respondents.
Downloaded From: http://archpedi.jamanetwork.com/ by a Monash University Library User on 06/18/2015
Interestingly, 209 (82%) of those who responded said they were not satisfied with the present system of procur¬ ing expert witnesses. In addition, 237 (93%) said they thought expert testimony should be subject to scrutiny by other medical professionals. COMMENT This study was limited because it depended on many fac¬ tors, including the motivation, honesty, interest, and time of those physicians who received the survey. It is possible that those "experts" who are least ethical did not respond to this survey despite its being anonymous. Thus, the answers col¬ lected may not be a representative sample of all pediatricians in Pennsylvania. It is also possible that some questions on the survey were viewed as ambiguous (eg, Did you have con¬ cerns about the attorney's motives?). Finally, some responders may have misrepresented information about how much time they truly spent in case preparation or exactly how much money they earned for this work. Given the limitations of this study, this survey reveals many important findings about expert witness testimony from pediatricians in Pennsylvania. First, it shows that about half the pediatricians in the state who responded to this survey have been involved with such testimony, and many of them were not fully affiliated medical school fac¬ ulty members. Fewer than one fourth had actually testified in court, which is close to the estimates of pediatrie chair¬ persons in a previous survey.2 It is of interest that more than half (58%) of those who responded to this survey had themselves been named as a defendant in a lawsuit. It is possible that this may have stimulated these physicians to become participants in what they may think is an imperfect system. It is also possible that being named in a lawsuit was further motivation to complete our survey. It is difficult to determine whether those respondents who had provided testimony were truly experts. Few were professional experts, in that fees made up a minimal part of the annual income of almost all those who gave testimony. Even fewer were listed with registers for expert witnesses. The small group of 30 physicians in this study who identified themselves as experts certainly had pub¬ lished more material than other respondents. However, when all those who provided testimony were compared with those who did not, the former were no more likely to be board certified in their area of expertise and had not
published more original reports. We could even question whether publishing numerous ar¬ ticles in a particular field means that one is truly an expert. Perhaps a private practitioner who has published few or no articles may be equally able to provide an opinion about the standard of care in his or her particular community.3,4 It re¬ mains difficult to define expert and to decide who really is or is not qualified to comment on a particular medicolegal case.5 Unfortunately, it is not possible to say if the expert wit¬ nesses in this study gave fair, impartial testimony, if they ob¬ tained all relevant facts before testifying, or if they were aware of the legal and ethical impact of their testimony, as recommended by Brent1 and others.4,6 This survey did not seem to imply that most pediatri¬ cians were attracted to the role of expert witness by high remuneration, as suggested by some.1,7,8 Only 31 (25%) in¬ cluded the fact that testifying is a profitable undertaking among their reasons to provide expert advice. Only one respondent indicated that he or she was paid on a contin-
gency basis, a practice scorned as unethical and illegal in most states.1,9"13 Most of those who answered the question reported earning between $100 and $200 per hour for tes¬ timony. This is in keeping with charges by subspecialists for medical consultation and is similar to honoraria paid to academicians for lecturing. Such fees have been sug¬ gested by others as being reasonable.14 Furthermore, 18 (18%) provided opinions for no fee at all. Many pediatri¬ cians testify in child abuse cases even when they are not subpoenaed and do not expect or request payment for this service. There seem to be factors more important than money that motivate pediatricians to do this work. Most of those who had not given testimony refrained because they had not been asked, not because they believed they were unqualified or because they were opposed to doing so. Apparently, there is great dissatisfaction among pediatri¬ cians in Pennsylvania with the current system of finding ex¬ perts. Two hundred nine (82%) of 255 respondents indicated their dissatisfaction with the process. Others have ques¬ tioned the quality of expert testimony and suggested a way to improve the system would be to have testimony subjected to peer review.1,2,12,15 In our survey 237 (93%) agreed that tes¬ timony should be scrutinized by other medical profession¬ als. This would be an expensive, time-consuming goal, and the testimony reviewed after the fact may not be helpful in a particular case. However, the review may have an effect on future testimony by the same individual. Most respondents in this survey who had given expert testimony claimed they did so to defend a fellow physician or help a patient or family. This suggests that their testimony may have been biased. The survey question on motivation may have been limiting. There was no impar¬ tial choice listed in the survey for the physician to indicate that he or she gave testimony to provide scholarship to the court in determining what is proper medical care. Perhaps our system should be changed so that experts would be obtained by the courts rather than by the plain¬ tiff or defense,15 or a scientific panel that was advised about the allegations of a case could give an objective opinion to the court.8 These alternatives may better encourage im¬ partial testimony. Ultimately, this should be the goal of every expert witness. References 1. Brent RL. The irresponsible expert witness: a failure of biomedical graduate education and professional accountability. Pediatrics. 1982;70:754-762. 2. AAP Committee on Medical Liability. Risky business: survey sheds light on expert witness testimony. AAP News. June 1988;4:6-17. 3. Hahn RG, Lefever D, Geagen J. The family physician as legal consult-
J Fam Pract. 1985;20:569-572. Gagliardi RA. The academic medical expert witness: a new confrontation between town and gown. Invest Radiol. 1988;23:636-638. 5. Quinn NK, Capron MAH. Expert witness testimony. J Oral Maxillofac Surg. 1988;46:1086-1089. 6. Kunin CM. The expert witness in medical malpractice litigation. Ann Intern Med. 1984;100:139-143. 7. Hecht F. Malpractice issues. Pediatrics. 1984;73:410. Letter. 8. Brent RL. Malpractice issues. Pediatrics. 1984;73:410-411. Reply letter. 9. Foreman J. Contingency fees for medical expert witness. Arch Ophthalmol. 1990;108:923. 10. Cocco AE. The hired gun. Md Med J. 1989;38:1062-1063. 11. Brent RL. Improving the quality of expert witness testimony. Pediatrics. 1988;82:511-513. 12. AAP Committee on Medical Liability. Guidelines for expert witness testimony. Pediatrics. 1989;83:312-313. 13. Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association. Chicago, Ill: American Medical Association; ant.
4.
1986. 14. Alexander E. The expert witness: to serve or not to
how much). 15.
serve
(and if so, for
Surg Neurol. 1987;27:505. Lundberg GD. Expert witness for whom? JAMA. 1984;252:251.
Downloaded From: http://archpedi.jamanetwork.com/ by a Monash University Library User on 06/18/2015
as
Expert Witness
Reaction to This
Douglas A. Boenning, MD; Steven M. Selbst, MD; \s=b\ Little is known about the qualifications and motives of pediatricians who provide expert witness testimony. Pediatricians in Pennsylvania were surveyed anonymously to learn more about this practice. Two hundred fifty-five (49%) of 520 pediatricians responded, and 126 of these physicians had provided expert testimony at some time. Fully affiliated medical school faculty members were more likely to act as expert witnesses than were other pediatricians. Seventy-seven (61 %) did so to defend a fellow physician. Only eight (6%) were listed with an organization that provides expert witnesses. Pediatricians were selective
about their involvement as expert witnesses, and 96 (76%) had refused to give testimony at some time. Most were paid an hourly rate, which was in keeping with charges for medical consultation or lecturing. More than 80% of respondents were unhappy with the present system of procuring expert witnesses.
(AJDC. 1992;146:1107-1109)
about the quality many years there has been of testimony given by so-called expert in For medical this there have concern
witnesses
concern, malpractice cases. Despite been few studies examining the qualifications and motives of those who provide such testimony. Brent1 reported that 24% of those giving testimony in medical negligence law¬ suits were practitioners who had testified fewer than three times previously. Another 31% were academicians who
had testified on more than three occasions. The source of these statistics is not well defined, and the motives of these witnesses were not addressed. More recently, a survey of medical school pediatrie chairpersons found that most pediatrie departments nei¬ ther encourage nor discourage faculty members to testify.2 Most of these chairpersons had no idea of how many fac¬ ulty members had testified in the past, and few had formal policies in place about faculty member participation in courtroom proceedings. Despite this, almost all were in some agreement concerning the distribution of income re¬ ceived by faculty members for giving testimony, and most required that the proceeds be shared between individual faculty members and the department. We conducted this study to further describe the role of pediatricians as expert witnesses in medicolegal cases. We wanted to determine which pediatricians gave such testi¬ mony, the reasons for deciding to testify or not to testify,
Accepted for publication May 6, From the Division of General
1992.
Pediatrics, The Children's Hospital of
Philadelphia, University of Pennsylvania School of Medicine. Reprint requests to the Emergency Medical Trauma Center, Children's National Medical Center, 111 Michigan Ave NW, Washington, DC 20010 (Dr Boenning).
Lorraine H.
Activity
Freed; Ashley M.
Groves
and how often testifying was done. We also wanted to learn if these pediatricians were satisfied with the current system of obtaining expert testimony. METHODS In early 1988 an anonymous survey was mailed to 520 pedia¬ tricians in Pennsylvania. One hundred forty (27%) of the names were selected from the faculty of The Children's Hospital of Phil¬ adelphia (Pa), some as part of a pilot survey. The names of the other 380 participants (73%) were selected from the 2987 Fellow¬ ship Directory of the American Academy of Pediatrics. Every third physician listed in the Pennsylvania section of that directory was mailed a questionnaire with a stamped return envelope. This questionnaire contained some items that required a "yes" or "no" response, some with multiple choices (more than one an¬ swer acceptable), and some that were open ended. The survey asked respondents if they had been involved in providing testi¬ mony (encompassing court appearances, depositions, and written and verbal opinions) and why they did or did not give such tes¬ timony. It also asked about the medical issues of the cases involved. The survey addressed remuneration for these services, the qualifications of the physician witness, and their satisfaction with the system of procuring expert witnesses. Each physician was told of the plans to publish the anonymous information in a medical journal.
RESULTS Questionnaires were returned from 255 (49%) of 520 physicians. Of these, 45 (18%) were from The Children's Hospital of Philadelphia. Of all those who responded, 126 (49%) had voluntarily provided opinions to attorneys or insurance companies about a medicolegal case. This was done most often (77 [61%] of 126 respondents) to defend a fellow physician (case reviewed for the defense attorney) or to defend a patient or family (54 respondents [43%]) (case reviewed for the plaintiff's attorney). Also, 40 (32%) physicians believed that providing an opinion was neces¬ sary to help ensure high standards of medical care. Table 1 lists additional reasons for providing an opinion in med¬ icolegal cases. Thirty-eight (30%) of those who gave testi¬ mony had done so exclusively for the defense, six (5%) for the plaintiff, and 82 (65%) for both defense and plaintiff. Interestingly, 73 (58%) of those who had given testimony had been named as a defendant in a medical lawsuit. Only eight (6% ) of the respondents who had provided tes¬ timony were listed with an organization that locates expert witnesses, and most respondents (74 [59%]) received case work through recommendations of colleagues. Sixty (48%) of 126 witnesses said that another attorney had recom¬ mended them for testimony. Only 63 (50%) of these physi¬ cians had testified in court, but 76 (60%) had provided dep¬ ositions and 71 (56%) had provided written or telephone re-
Downloaded From: http://archpedi.jamanetwork.com/ by a Monash University Library User on 06/18/2015
Providing Opinions in Medicolegal Cases
Table 1.—Reasons for
No. (%) of
Reason*
Defend fellow
physician Help patient/family Ensure high standards of care Profitable undertaking Obligation as one of few experts in field
Defend a hospital Personal interest in case Curious about legal system
Expected by department one answer acceptable.
Table
of Cases in Which 2.—Principal Medical IssuesProvided Expert Testimony Was No. (%) of
Respondents
Reason*
(n=126)
Medication
77(61) 54 (43) 40 (32) 31 (25)
Delay
82 (68) 55 (46)
error
in
diagnosis Incorrect diagnosis
42
Poor outcome at birth
37 (31 )
Failure 30 (24)
more
to
Inappropriate treatment
Surgical mishap
ports in medicolegal cases. The medical issues of the cases in
Other
testimony was provided are listed in Table 2. Ninety-six (76%) of those who had given testimony
which
noted that they had also refused to do so in some instances. Physicians refused cases because they did not believe there was a legitimate case (58 [60 % ] of 96 respondents), they had concerns about the attorney's motives (42 respondents [44%]), or they did not believe that they were qualified ex¬ perts for such a case (41 respondents [43%]). Table 3 lists other reasons cited by physicians who refused to partici¬ pate in a particular case. Thirty-two (33%) of the respon¬ dents avoided cases in certain geographic locations, and 14 (14%) avoided cases involving certain institutions. Most pediatricians (80%) who had given expert testi¬ mony were paid an hourly rate. Of those 101 physicians, 43 (43%) were paid between $100 and $200 per hour. An¬ other 21 (21%) charged more than $200 per hour, and 19 (19%) charged less than $100 per hour. Eighteen (18%) re¬ sponded that they were sometimes not paid for expert testimony. Only one physician said that he or she received a contingency fee, but 23 (18%) of 126 were paid a flat rate, usually $500 to $1000 per case. Only 34 (27%) had to report these earnings to a superior or partner, and 14 (11%) had to share these earnings with a partner. Another 20 (16%) gave part or all of their earnings in these cases to their department, but 91 (72%) kept such revenue for per¬ sonal use. More than 90% of those who gave testimony said their fees from this activity accounted for less than 5% of their annual income. Case preparation involved about 8 hours of the physician's time per case, and was usually ac¬ complished during nonbusiness hours. Twenty-one per¬ cent of witnesses gave testimony in more than two cases per year, and these physicians were more likely to have a prior association with a law firm than others (P=.006). Of the 129 (51 % ) of 255 survey respondents who had never provided an opinion, 103 (80%) said they were never con¬ tacted to do so. In addition, 18 (14%) said they did not want to get involved with the legal system, and 14 (11%) reported that they refused to provide such opinions. Only nine (7%) said they did not consider themselves an expert, but 13 (10%) said they were too busy to provide opinions in legal cases. The mean age of all respondents was 48 years, and those who provided testimony did not differ significantly in age from those who did not. One hundred thirty (51%) of those who responded to the survey were in private practice and 71 (28%) were hospital based. Only eight (3%) worked in
providing
*More than
(20) (20) 22 (18) 18(15) 18(15) 13 (11) 11 (9) 9 (8) 24
24
Injury case/long-term prognosis Congenital anomalies Severe illness/poor outcome
*More than
(35)
transfer child to
appropriate hospital
Child abuse
24(19) 17 (13) 14(11) 9 (7)
Respondents
(n=120)
one answer
acceptable.
Table 3.—Reasons to Refuse to Participate in Particular Legal Case No. (%) of Reason* Not Not
an
58 (60)
attorney's
motives
No time Knew defendant Wished not to get involved Previous bad experience one answer
(44) (43) 33 (34) 24 (25) 16(17) 5 (5) 42
41
expert
*More than
Respondents
(n=96)
legitimate case
Concern about
a
acceptable.
health maintenance organization and 15 (6%) in a clinic. Seventy-four (29%) of 255 respondents were fully affiliated faculty members of a medical school and 71 (28%) had clinical faculty appointments. In addition, 48 (19%) were clinical affiliates at a teaching hospital and 77 (30%) were a
attending physicians at a community hospital. Many physicians in both private practice and academic medicine had participated as expert witnesses. Those who were fully affiliated medical school faculty members were more likely to act as expert witnesses (50 [68%] of 74) than were other pediatricians (81 [45%] of 181) (P=.003). How¬ ever, fully affiliated faculty members were not more likely than other respondents to participate in more than two cases per year. Of the 255 responding physicians, 115 (45%) considered themselves to be pediatrie subspecialists, but only 89 (35%) had subspecialty board certification in their area of expertise. Those who testified were no more likely to be
board certified than those who had not testified. The responding physicians had published a mean of 19 original research reports and seven chapters, reviews, or editorials. Those who had been expert witnesses did not have more publications than those who had never pro¬ vided testimony. However, 30 pediatricians who identi¬ fied themselves as true experts (said they provided testi¬ mony because they were one of few experts in their field) averaged 37 publications compared with a median of four publications for other respondents.
Downloaded From: http://archpedi.jamanetwork.com/ by a Monash University Library User on 06/18/2015
Interestingly, 209 (82%) of those who responded said they were not satisfied with the present system of procur¬ ing expert witnesses. In addition, 237 (93%) said they thought expert testimony should be subject to scrutiny by other medical professionals. COMMENT This study was limited because it depended on many fac¬ tors, including the motivation, honesty, interest, and time of those physicians who received the survey. It is possible that those "experts" who are least ethical did not respond to this survey despite its being anonymous. Thus, the answers col¬ lected may not be a representative sample of all pediatricians in Pennsylvania. It is also possible that some questions on the survey were viewed as ambiguous (eg, Did you have con¬ cerns about the attorney's motives?). Finally, some responders may have misrepresented information about how much time they truly spent in case preparation or exactly how much money they earned for this work. Given the limitations of this study, this survey reveals many important findings about expert witness testimony from pediatricians in Pennsylvania. First, it shows that about half the pediatricians in the state who responded to this survey have been involved with such testimony, and many of them were not fully affiliated medical school fac¬ ulty members. Fewer than one fourth had actually testified in court, which is close to the estimates of pediatrie chair¬ persons in a previous survey.2 It is of interest that more than half (58%) of those who responded to this survey had themselves been named as a defendant in a lawsuit. It is possible that this may have stimulated these physicians to become participants in what they may think is an imperfect system. It is also possible that being named in a lawsuit was further motivation to complete our survey. It is difficult to determine whether those respondents who had provided testimony were truly experts. Few were professional experts, in that fees made up a minimal part of the annual income of almost all those who gave testimony. Even fewer were listed with registers for expert witnesses. The small group of 30 physicians in this study who identified themselves as experts certainly had pub¬ lished more material than other respondents. However, when all those who provided testimony were compared with those who did not, the former were no more likely to be board certified in their area of expertise and had not
published more original reports. We could even question whether publishing numerous ar¬ ticles in a particular field means that one is truly an expert. Perhaps a private practitioner who has published few or no articles may be equally able to provide an opinion about the standard of care in his or her particular community.3,4 It re¬ mains difficult to define expert and to decide who really is or is not qualified to comment on a particular medicolegal case.5 Unfortunately, it is not possible to say if the expert wit¬ nesses in this study gave fair, impartial testimony, if they ob¬ tained all relevant facts before testifying, or if they were aware of the legal and ethical impact of their testimony, as recommended by Brent1 and others.4,6 This survey did not seem to imply that most pediatri¬ cians were attracted to the role of expert witness by high remuneration, as suggested by some.1,7,8 Only 31 (25%) in¬ cluded the fact that testifying is a profitable undertaking among their reasons to provide expert advice. Only one respondent indicated that he or she was paid on a contin-
gency basis, a practice scorned as unethical and illegal in most states.1,9"13 Most of those who answered the question reported earning between $100 and $200 per hour for tes¬ timony. This is in keeping with charges by subspecialists for medical consultation and is similar to honoraria paid to academicians for lecturing. Such fees have been sug¬ gested by others as being reasonable.14 Furthermore, 18 (18%) provided opinions for no fee at all. Many pediatri¬ cians testify in child abuse cases even when they are not subpoenaed and do not expect or request payment for this service. There seem to be factors more important than money that motivate pediatricians to do this work. Most of those who had not given testimony refrained because they had not been asked, not because they believed they were unqualified or because they were opposed to doing so. Apparently, there is great dissatisfaction among pediatri¬ cians in Pennsylvania with the current system of finding ex¬ perts. Two hundred nine (82%) of 255 respondents indicated their dissatisfaction with the process. Others have ques¬ tioned the quality of expert testimony and suggested a way to improve the system would be to have testimony subjected to peer review.1,2,12,15 In our survey 237 (93%) agreed that tes¬ timony should be scrutinized by other medical profession¬ als. This would be an expensive, time-consuming goal, and the testimony reviewed after the fact may not be helpful in a particular case. However, the review may have an effect on future testimony by the same individual. Most respondents in this survey who had given expert testimony claimed they did so to defend a fellow physician or help a patient or family. This suggests that their testimony may have been biased. The survey question on motivation may have been limiting. There was no impar¬ tial choice listed in the survey for the physician to indicate that he or she gave testimony to provide scholarship to the court in determining what is proper medical care. Perhaps our system should be changed so that experts would be obtained by the courts rather than by the plain¬ tiff or defense,15 or a scientific panel that was advised about the allegations of a case could give an objective opinion to the court.8 These alternatives may better encourage im¬ partial testimony. Ultimately, this should be the goal of every expert witness. References 1. Brent RL. The irresponsible expert witness: a failure of biomedical graduate education and professional accountability. Pediatrics. 1982;70:754-762. 2. AAP Committee on Medical Liability. Risky business: survey sheds light on expert witness testimony. AAP News. June 1988;4:6-17. 3. Hahn RG, Lefever D, Geagen J. The family physician as legal consult-
J Fam Pract. 1985;20:569-572. Gagliardi RA. The academic medical expert witness: a new confrontation between town and gown. Invest Radiol. 1988;23:636-638. 5. Quinn NK, Capron MAH. Expert witness testimony. J Oral Maxillofac Surg. 1988;46:1086-1089. 6. Kunin CM. The expert witness in medical malpractice litigation. Ann Intern Med. 1984;100:139-143. 7. Hecht F. Malpractice issues. Pediatrics. 1984;73:410. Letter. 8. Brent RL. Malpractice issues. Pediatrics. 1984;73:410-411. Reply letter. 9. Foreman J. Contingency fees for medical expert witness. Arch Ophthalmol. 1990;108:923. 10. Cocco AE. The hired gun. Md Med J. 1989;38:1062-1063. 11. Brent RL. Improving the quality of expert witness testimony. Pediatrics. 1988;82:511-513. 12. AAP Committee on Medical Liability. Guidelines for expert witness testimony. Pediatrics. 1989;83:312-313. 13. Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association. Chicago, Ill: American Medical Association; ant.
4.
1986. 14. Alexander E. The expert witness: to serve or not to
how much). 15.
serve
(and if so, for
Surg Neurol. 1987;27:505. Lundberg GD. Expert witness for whom? JAMA. 1984;252:251.
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