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Fight over Policing of Expert Testimony Heats Up
Many voluntary physician organizations have adopted codes of ethics that purport to govern the content of expert witness testimony as part of an effort to weed out unsupported opinions and perjury. For example, the state medical boards often have administrative rules prohibiting their members from engaging in 'unprofessional conduct.' Similarly, the American College of Surgeons, American Academy of Neurological Surgeons, the American College of Obstetricians and Gynecologists, and the American College of Emergency Physicians have adopted statements of policy that condemn testimony that is false, misleading, without a medical foundation, or that is not based on a thorough review of the pertinent medical records and available testimony. Some organizations have published 'oaths of affirmations' for expert witnesses to sign before they testify.
Over the years, aggrieved physicians ' both defendants and witnesses who have testified on behalf of the patient ' have attempted to use the ethical codes, expert witness affirmations, and administrative rules to pursue witnesses who testify against them. These actions have taken various forms: disciplinary proceedings regarding a physician's license following his or her testimony; suspension or revocation of membership in a voluntary organization, with the attendant effect on the physician's reputation and practice; and separate lawsuits for libel and slander.
In three recent decisions, courts in North Carolina, Florida and Kansas have expressed displeasure with these extra-judicial attempts by the medical profession to police its own members. Let's take a look at these recent cases and the impact of those cases on expert witness testimony in medical malpractice litigation.
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