Correspondence

Unpaid Expert Witnesses

N Engl J Med 1998; 338:1233-1235April 23, 1998

Article

To the Editor:

Phibbs (Nov. 13 issue)1 recommends the development of national panels of acknowledged experts, presumably to replace paid expert witnesses in cases of medical malpractice. If as he alleges, some physicians engage in “scientific perjury” in exchange for a fee, such abuses should not be tolerated. However, in many instances, there are honest differences of opinion. Each side is then afforded the opportunity to present evidence, including expert testimony, as part of the adversarial advocacy process, and a judge or a jury then decides the case. In some states, such as Maryland, malpractice claims can often be resolved by a health-claims arbitration board, composed at least in part of physicians, without the necessity of an actual court hearing. In some cases, the court may select its own medical expert. However, the establishment of designated panels of physicians would represent a marked departure from our traditional system. Would a physician member of such a panel be viewed as impartial by a patient who feels he or she was injured by a physician? What should be done if panel members disagree?

Our present system of adversarial advocacy ensures due process, affording all the opportunity to argue their case in court effectively with an expert witness of their own choosing. We should be cautious about tampering with that system. Professional societies should apply sanctions to expert witnesses who fail to behave responsibly, and they should make recommendations about a range of acceptable fees. Medical experts deserve to be paid for their time.

Fred S. Berlin, M.D., Ph.D.
Johns Hopkins Hospital, Baltimore, MD 21205

1 References

1. 1

   Phibbs B. Unpaid expert witnesses. N Engl J Med 1997;337:1477-1478
   Full Text | Web of Science | Medline

To the Editor:

The system Phibbs advocates is similar to the mandatory medical-review panels that exist in some states. The physicians serve with little or no compensation and tend to see their role as protecting their peers from the perceived evils of tort law. The panels rarely fault the doctors. Although well intended, such systems do not offer much assistance in resolving cases.

William E. Walker, M.D., J.D.
2831 Sackett, Houston, TX 77098

To the Editor:

The medical community often scoffs at attorneys for using in a trial physicians who are frequent expert witnesses. In my experience, this results from the refusal of respected local physicians to become involved in cases of malpractice and in essence police themselves. Nothing is more frustrating to me than to hear a prominent physician from a major medical center tell me after hearing the facts that I have a clear case of medical malpractice but that he or she will not get involved because he or she only testifies on behalf of physicians. It is only fair that physicians who do on occasion become involved as medical experts do so for both sides. Possibly, this would end the use of the “hired gun” experts that we all abhor.

Kenneth M. Levine, J.D.
Billet, Rigopoulos, and Levine, Boston, MA 02110

Author/Editor Response

Dr. Phibbs replies:

To the Editor: In response to Walker: panels have not been widely successful because the courts have ruled that they cannot be made compulsory and plaintiffs' lawyers — especially unscrupulous ones — avoid them like the plague. In Wyoming, where I helped institute compulsory panel review, the system worked remarkably well until the courts decided that it interfered with the legal profession's constitutional rights and abolished it. In a number of cases, the Wyoming panels came down with remarkable fairness on either side. In most states, a panel hearing is not compulsory and its findings need not be transmitted to a jury; thus, the process is hamstrung and largely ignored by plaintiffs' attorneys.

Levine brings up a legitimate point: the reluctance of many physicians to testify for the plaintiff. It is an understandable reluctance in view of the personal consequences for the physician-witness. That is why a national panel of disinterested experts is essential. In the past six months I have reviewed two cases in which a physician was obviously culpable and have so informed the defense counsel. Both cases were settled with a minimum of time and expense.

Berlin argues for the present adversarial system, with paid witnesses arguing opposing viewpoints before a jury of laypeople who cannot conceivably judge the complex scientific issues that are often involved. This adversarial advocacy process is a dinosaur, incredibly expensive and slow and, in terms of determining scientific fact, a farce. One thinks of Kafka. Berlin invokes due process, quite overlooking the scandalous performance of professional witnesses, a phenomenon predictable and inevitable in the present system.

Medical experts should not expect to be paid for this kind of testimony: we owe time and effort, pro bono, to our system of laws and to our society.

In a sane system, any malpractice case could be settled fairly with a simple, informal hearing before impartial experts within two to three months for a few thousand dollars, in contrast to the present charade involving several years' time and hundreds of thousands of dollars, chiefly in legal fees.

Brendan P. Phibbs, M.D.
Padre Kino Community Hospital, Tucson, AZ 85713