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The Expert Witness Affirmation

By ALM Staff | Law Journal Newsletters |
December 26, 2006

In recent years, numerous professional medical associations, such as the American College of Obstetrics and Gynecology (ACOG), the American Association of Neurological Surgeons (AANS), the American Medical Association (AMA), and many others have taken on the 'hired gun' experts by promulgating expert witness guidelines and oaths of affirmation intended to self-regulate medical expert testimony in the courtroom. The guidelines and affirmations are typically part of larger professional conduct programs meant to improve the quality of expert witness testimony and increase the probability of equitable outcomes. American Academy of Pediatrics, Guidelines for Expert Witness Testimony in Medical Malpractice Litigation, available at www.pediatrics.aappublications.org/cgi/content/abstract/109/5/974.

As we have frequently heard, disciplinary action or membership revocation proceedings may ensue as a result of violations of these guidelines, and several lawsuits challenging the associations' authority in this regard have received widespread attention. See E. Frisch, Fight Over Policing of Expert Testimony Heats Up, Medical Malpractice Law & Strategy, Vol. 24, No. 1, Oct. 2006 (discussing In re Gary James Lustgarten, M.D., 629 S.E.2d 886 (N.C. App. 2006); Fullerton v. The Florida Med. Ass'n, Inc., ___ So.2d ___, 2006 WL 1888545 (Fla.App. 1 Dist. 2006); Bundren v. Parriott, 2006 WL 1805867 (D.Kan. 2006)). The guidelines and affirmations, as well as the cases challenging them, certainly give rise to an interesting debate about the role of these voluntary medical associations in policing courtroom testimony. The more significant consequence to medical malpractice lawyers, however, is that these guidelines and affirmations have opened up a whole new fertile ground for impeachment of opposing experts.

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