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Module 18: Expert Witness

Upon completion of this module, the urologist should be able to:

  1. Articulate why the provision of expert witness testimony is a responsibility of practicing urologists.
  2. Define the strict criteria necessary to be a good expert witness.
  3. Define the criteria essential to good expert witness testimony.

Module: 18 / Expert Witness

Contents

  1. Framing the Challenges: Clinical Scenarios
  2. Historical, Legal And Ethical Background
  3. Could the Provision of Skilled Expert Witness Case Review and Testimony Reduce the Rates of Alleged Malpractice Cases?
  4. What are the Qualifications to be an Expert Witness?
  5. The Risks Taken in Providing Case Review and Expert Witness Testimony
  6. Cases for Discussion, Analysis and Reflection
  7. Questions for Discussion, Analysis and Reflection
  8. Additional Resources

Framing the Challenges: Clinical Scenarios

You are a surgeon who performs laparoscopic radical nephrectomies routinely; you have a patient who develops a port-site hernia. You are sued over this complication. A colleague from your old residency program has reviewed the case and presented himself as an expert witness for the plaintiff.

You are caring for yet another patient who has had a complication of a procedure done by someone who you believe to be incompetent in the evaluation and surgical management of this condition. After you have spoken to the colleague regarding your concern, you continue to see this complication repeatedly. You have written and spoken extensively about the procedure, and about this complication. Subsequently, a legal firm representing a class action suit regarding this complication has approached you as a possible expert witness. Do you do it? Why or why not?

You have received notification from an attorney's office that a patient is suing for malpractice related to failure to diagnose kidney cancer. You saw this patient once two years ago for prostatitis, and there was no hematuria at that time. You are finding that the possibility of a malpractice case is very unnerving, and have difficulty seeing any new patients without also performing a CT urogram.

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Historical, Legal and Ethical Background

Why should a urologic surgeon be an expert witness?
"The current malpractice system is costly, inefficient, and in many cases, unfair."1 In order to aid in the fair adjudication of alleged malpractice issues, professionals have a responsibility to provide unbiased factual guidance regarding medical care for the participants in the judicial system. Guidelines for such testimony are available at auanet.org, and have been under episodic review and revision since established by the AUA Board of Directors in 2001. Multiple other medical societies have also developed guidelines for those considering case review or expert witness testimony2-9. Simply, it's our responsibility to educate those involved in the judicial system regarding the standard of care.

In a recent report, covering malpractice claims from 1991 to 2005, the annual proportion of urologists involved in a malpractice claim was 10%, with the cumulative career probably of facing a malpractice claim or an indemnity payment of nearly 100% by age 65.10 This is indeed sobering information, given that the initiation of a malpractice suit has been shown to poorly correlated with the actual occurrence of an adverse event,11 and that the severity of a disability correlated with payment more than the occurrence of an adverse event or proof of causal negligence12. Fair and unbiased education of those involved in the judicial process, in what constitutes the standard of care in urologic cases, with adherence to established expert witness policy regarding what constitutes fair and complete case review may reduce the judicial case burden and costs of "frivolous" cases and enhance the resources available in the just application of the law to true events of malpractice. It is our professional responsibility to improve the malpractice climate, if possible.

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Could the Provision of Skilled Expert Witness Case Review and Testimony Reduce the Rates of Alleged Malpractice Cases?

For malpractice to occur, a duty to act, the failure to follow acceptable standards of practice causing injury resulting in harm is required. Unfortunately, negligence, incompetence and resultant harm does occur. And redress is appropriate in the courts. However, cases can be successfully prosecuted without clear evidence of malpractice. Unfortunately, when adverse events occur, miscommunication may be misperceived as negligence, incompetence or deceit. A surgeon's inability to have an honest conversation about what happened can be difficult in the face of considerable fear or self-doubt. There is much literature to support honesty in the face of medical complications. Poor communication is a risk factor for subsequent legal proceedings. When adverse events occur, the physician should be willing and able to factually communicate what has happened and what the next steps are, and resist the commonly felt desire to shield oneself out of shame or fear.

Other aspects of risk reduction require that we acknowledge and act upon the fact that we ourselves and our colleagues may not be practicing to accepted standards, as reducing the occurrence of malpractice is far more critical than reducing frivolous malpractice litigation. Reduction in the occurrence of malpractice has focused recently on two areas: the reporting of adverse events, and communication regarding impaired or incompetent behavior. To the first: improved communication and documentation of medical errors may help reduce the subsequent risk of a malpractice suit. A medical culture encouraging the report of adverse events and of misconduct is becoming normative. Most reporting is anonymous, and not subject to discovery. Furthermore, analysis of surgical errors has demonstrated that most errors are system errors13, rather than individual failure. Any adverse events should be promptly analyzed and risk reduction responses often find systematic and procedural changes, such as have been instituted with the surgical pause, site marking and debriefing.14 Procedural approaches to risk reduction may allow practitioners to concentrate on the more difficult problems of monitoring and maintaining physician wellness and professional competency.

The conversation with a colleague regarding an impaired or incompetent behavior is never easy, but it remains the responsibility of the profession. Similar to the responsibility to provide expert witness testimony, knowledge of incompetence, and/or disability requires reporting. While this professional responsibility for self-scrutiny is writ large into the code of conduct, many physicians abrogate their reporting responsibility,15,16 and this erodes the public trust.17 Nonetheless, non-reporting of misconduct remains frequent. It is reported to occur in one third of cases. The most frequently cited reasons for not reporting are that one is not responsible, that another colleague will or has already reported code of conduct violationsi, or a fear of punishment, retribution or retaliation15. The existing professional culture that impugns blame severely reduces reporting and risk reduction strategies for adverse events. Thankfully, that culture of impugning blame is changing. Parenthetically, however, recent incidence studies of error have not shown a decline in the error rates with improved adverse event reporting. It is unknown if this represents an increase incidence of error reporting which will initially occur in a more transparent culture. This erosion of the public trust in professional self-scrutiny and self-discipline is the fault line upon which the current litigational climate is based. "Glass, china, and reputation are easily crack'd, and never mended well.ii"

It must be underscored that prompt factual reporting of misconduct is and must be separate from a duty to investigate. These two activities remain separated to reduce the perception of a conflict of interest by the public or the profession. If misbehavior is witnessed, the witness should refrain from being the investigator.


iThis failure to report is known as the Kitty Genovese phenomenon, after multiple witnesses failed to report the stabbing of a young woman in New York City, non-reporting observers frequently respond that reporting was not their duty, or that someone else surely must have reported it.
iiA quote of Benjamin Franklin as reported in Poor Richard's Almanac, # 160. Copyright 1914, The U.S.C. Publishing Co. Waterloo, IA.

Reducing the risk of frivolous malpractice litigation may also involve tort reform or changes in health care law. Some advocate expert witness testimony reform to reduce the financial incentives to perform such testimony, suggesting that caps on expert witness fees and liability for negligent expert witness testimony would improve the quality of expert witness testimony, leading to purportedly irresponsible suits.18 This discussion is beyond our purview.

In this module, our purpose is dual: heretofore, we've discussed why expert witness testimony is a professional responsibility and its close tie to risk reduction through adverse event and/or misconduct reporting. Now we will concentrate on the qualifications necessary to provide expert witness review and testimony.

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What are the Qualifications to be an Expert Witness?

Given that the urologist is highly likely to be the subject of a malpractice claim and given that the urologist has a responsibility for the protecting the shared best practices of our profession, the AUA has provided policy on what constitutes a good expert witness. In order to assist in the most educational content, free from bias or misstatement, urologists providing case review or expert witness opinion should be engaged in the active practice of clinical urology for at least five years from the completion of training. Admittedly, this requirement is arbitrary, but the underlying principle is one of experience, allowing for a calm and paced review of facts and supporting documents. Additionally, while not codified in current Expert Witness Policy, the urologist should be in active clinical practice within the last 5 years to ensure that he or she is conversant with the medical standards extent both at the time of the occurrence and to educate regarding current standards.

The urologist should have read, accepted and agreed to abide by the expert witness affirmation statement.iii Good policy does not assure compliance, and "remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof.iv" Hence, professional societies may have to adjudicate complaints on behalf of their membership.


iiihttp://www.auanet.org/content/guidelines-and-quality-care/policy-statements/e/expwitaffirmation.pdf
ivJohn F Kennedy, inaugural address, January 20, 1961

The seven standards used for assessing compliance with expert witness guidelines for the AUA are:

  1. Professional experience: The expert witness should have the background, training and experience, including experience with the diagnosis or the treatment at issue in the case, in order to render a fair opinion. Practically, that means that the expert witness should be actively treating patients with the diagnosis being considered, credentialed for the procedure being reviewed, and be actively performing that procedure.

  2. Familiarity with the standard of care: The expert witness should be conversant in the applicable standard of care at the time of the incident at issues, as reflected in the relevant treatises and scientific literature,including clinical guidelines as where then current. Reference to those sources should be to hand. Familiarity with the standard of care may also relate to geography and access to technology, as significant regional variations in access and practice patterns occur.

  3. Complete review: The witness should have full access to all available documents, and thoroughly review all the facts of the case, before rendering an opinion. However, factual accuracy will often be difficult to ascertain, since the attorney or insurer seeking review may present a one-sided version of the facts; and in the rare case, the medical records may be distorted in favor of the interests of their author.

  4. Impartiality: the best case reviews and expert witness testimony are unbiased. A good measure of that impartiality is that testimony could be used by either side in litigation. Impartiality must include a lack of personalor professional conflict of interest with the participants in the judicial process. As such, an expert witness holding strongly held views for one litigant versus another should openly declare those conflicts. Likewise, an expert witness should not unduly profit from providing expert witness testimony. This is a service to the public, and as such should not be a mainstay of one's income, reputation nor a bully pulpit for strongly felt beliefs, prejudices against individuals, clinical theories or modalities of practice.

  5. Objectivity: During case review and testimony, the expert witness must seek to remain free of manipulations by either litigant in the case at issue. The outcome of the case must not influence compensation or otherwise benefit the expert witness. The expert best serves as an educator, rather than an advocate. He/she provides facts, not theory or speculation.

  6. Scientific Method: the testimony provided reflects the proper use of scientific method in reaching an opinion. It is not capricious, but well reasoned.

  7. All options are considered: Expert witness testimony should take into account all reasonable and acceptable options for care of the patient, and present each of them in accordance with reputable sources and respected practice.

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The Risks Taken in Providing Case Review and Expert Witness Testimony

An opinion given by an expert witness may simply be wrong. A common source of error is the assignment of proximate causation, wherein the probability or a relative risk is used to imply cause. The remedy for such an error is to present an opinion based on an estimation of causation. Probability is a more reasoned approach for most cases. As an example, the occurrence of a small bowel obstruction even years subsequent is a known risk of prior intra-abdominal procedures. However, the risk of spontaneous small bowel obstruction also occurs in low prevalence without any history of prior operative procedures. Is the small bowel obstruction occurring a decade after a laparoscopic peritoneal approach for a partial nephrectomy secondary to the prior surgery, or occurring spontaneously? While the operative findings might help elucidate probable cause, in this case, the occurrence is not a presumption of cause, i.e. "res ipsa loquitur "does not apply. Here, "the thing does not speak for itself." An expert witness should discuss the probability, as only rarely is any comment on factual (or legal) causality unequivocal or appropriate. Most expert witnesses, therefore, educate on establishing the standard of care rather than on a probability of proximate causation.

One should take care in opining malpractice to cases associated with known risks and complications if there is no other factual evidence of incompetence, negligence, fraud or deceit. Successful litigation in malpractice cases can result when even common complications repaired promptly are coupled with a failure of the surgeon to communicate clearly and factually with the patient and/or family members.

Damage to reputation can and does occur, as one is testifying against alleged malpractice events occurring with one's peers. Few case reviewers or expert witness testifiers would want to be considered asinine or worse, predatory. Furthermore, expert witness testimony can lead to countersuits in several states if that testimony is perceived as frivolous or incompetent.

One might simply prove not so expert on cross-examination. The Daubert case decision by the US Supreme Court in 199319, applicable today in all federal and some state courts, requires that a judge determine, prior to presentation of that testimony, if the expert testimony is scientifically valid, and therefore permissible to be presented to the jury. An expert witness must have a strong scientific basis for his or her opinion, and be able to defend it. For example, an expert witness might require expertise in probability and statistics. While predominantly used in ligation regarding population-based or industry-related risks, the establishment of a relative risk of greater than 2 must be proven before a jury could conclude that the probability of causality exceeds 50% ("more likely than not"). Well versed urologists may appear less than expert when faced with questions regarding "more likely that not" in a court of law.

In summary, the professional responsibility to provide caring competent care includes the responsibility to monitor ourselves and our colleagues; this includes risk reduction through improving communication skills, reporting of adverse events and of professional misconduct, as well as the provision of skilled expert witness testimony. The unbiased education of those involved in the judicial system is the primary responsibility of the expert witness, and attributes required of an expert witness are outlined: professional experience, knowledge of the standard of care, complete review, impartiality, objectivity, use of the scientific method and the consideration of all options.

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Cases for Discussion, Analysis and Reflection

A 42 year old female undergoes an uncomplicated synthetic mesh sling for high grade stress urinary incontinence. Six months later she is diagnosed as having a vaginal mesh exposure leading to partner dyspareunia. She has hired an aggressive lawyer to defend her from your malicious use of an implanted material with known risks. How does your informed consent document and the recent FDA warnings regarding the use of mesh help or hurt your defense?

A 55 year old man has had positive urine cytology and no malignancy identifiable on an extensive evaluation. You have recommended, in writing, that he continue with long-term surveillance with serial urine cytology, upper tract imaging and cystoscopy. The patient returned episodically for a time and then was non-compliant with your recommended surveillance. He subsequently presents with pulmonary metastases. His family's argument is that advanced imaging strategies, including his chest, and immunodiagnostic tests were not provided that would have diagnosed the site prior to metastatic progression. An expert witness has been found to representthe prosecution. How do established published guidelines help or hurt your defense?

An expert witness testifies that you were negligent in the performance of a procedure since, although you are Board-certified and credentialed for the procedure, you are not fellowship trained in the performance of that specific procedure. How does Board certification and hospital credentialing help or hurt your defense?

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Questions for Discussion, Analysis and Reflection

Your expertise is requested by a legal firm regarding a malpractice case. How do you assure that your own testimony remains unbiased and factual when you have already concluded beyond a reasonable doubt that the urologist had a duty to act, yet did not, resulting in significant injury? How do you protect your objective discussion of the case from the fact that your compensation is paid by the prosecution?

Your expertise is requested for the defense against what you believe to a frivolous lawsuit. How do you assure that you discuss thoroughly all options without prejudice?

A friend is being sued for malpractice: how do you best support him or her?

A practice partner is having more complications of late. How do you frame the conversation regarding his or her possible physical or mental competency leading to impairment?

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Additional Resources

  1. Loughlin, K.R., Medical malpractice: the good, the bad, and the ugly. Urologic Clinics of North America. 2009. 36(1): p. 101-10.

  2. Guidelines for expert witness testimony for the specialty of medical genetics. Social, Ethical and Legal Issues Committee, American College of Medical Genetics. Genetics in Medicine, 2000. 2(6): p. 367-8.

  3. American College of Emergency, P., American College of Emergency Physicians. Expert witness guidelines for the specialty of emergency medicine. Annals of Emergency Medicine, 2001. 38(4): p. 486.

  4. Guidelines for expert witness testimony in medical malpractice litigation. Committee on Medical Liability. American Academy of Pediatrics.[Erratum appears in Pediatrics 2002 Sep;110(3):651]. Pediatrics, 2002. 109(5): p. 974-9. http://pediatrics.aappublications.org/content/109/5/974.long

  5. Popp, R.J., et al., ACCF/AHA consensus conference report on professionalism and ethics. Circulation, 2004. 110(16): p. 2506-49. http://circ.ahajournals.org/content/110/16/2506.long

  6. Freeman, J.M. and K.B. Nelson, Expert medical testimony: Responsibilities of medical societies. Neurology, 2004. 63(9): p. 1557-8.

  7. Williams, M.A., et al., American Academy of Neurology qualifications and guidelines for the physician expert witness. Neurology, 2006. 66(1): p. 13-4.

  8. Committee on Ethics, American College of Obstetricians and Gynecologists, ACOG Committee Opinion No. 374: Expert testimony. Obstetrics & Gynecology, 2007. 110(2 Pt 1): p. 445-6.

  9. Fife, C.E., et al., Legal issues in the care of pressure ulcer patients: key concepts for healthcare providers--a consensus paper from the International Expert Wound Care Advisory PanelCopyright.[Erratum appears in Adv Skin Wound Care. 2010 Dec;23(12):540]. Advances in Skin & Wound Care, 2010. 23(11): p. 493-507.

  10. Jena, A.B., et al., Malpractice risk according to physician specialty. New England Journal of Medicine, 2011. 365(7): p. 629-36.

  11. Localio, A.R., et al., Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. New England Journal of Medicine, 1991. 325(4): p. 245-51. http://www.nejm.org/doi/full/10.1056/NEJM199107253250405

  12. Brennan, T.A., C.M. Sox, and H.R. Burstin, Relation between negligent adverse events and the outcomes of medical-malpractice litigation. New England Journal of Medicine, 1996. 335(26): p. 1963-7. http://www.nejm.org/doi/full/10.1056/NEJM199612263352606

  13. Rogers, S.O., Jr., et al., Analysis of surgical errors in closed malpractice claims at 4 liability insurers. Surgery, 2006. 140(1): p. 25-33. http://www.surgjournal.com/article/S0039-6060(06)00058-4/abstract

  14. Collins, M.E., et al., Responsibility and reflection: understanding our responses to perceived errors. A response to Woodward, Lemer and Wu. Social Science & Medicine, 2009. 69(9): p. 1294-5.

  15. DesRoches, C.M., et al., Physicians' perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. JAMA, 2010. 304(2): p. 187-93. http://jama.ama-assn.org/content/304/2/187.long

  16. Wynia, M.K., The role of professionalism and self-regulation in detecting impaired or incompetent physicians. JAMA, 2010. 304(2): p. 210-2.

  17. Wynia, M.K., The short history and tenuous future of medical professionalism: the erosion of medicine's social contract. Perspectives in Biology & Medicine, 2008. 51(4): p. 565-78.

  18. Horton, J.B., et al., Expert witness reform. Plastic & Reconstructive Surgery, 2007. 120(7): p. 2095-100.

  19. Haack, S., Trial and error: the Supreme Court's philosophy of science. American Journal of Public Health, 2005. 95 Suppl 1: p. S66-73. http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2004.044529?url_ver=Z39.88-2003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%3dpubmed

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Additional Resources


  1. Loughlin, K.R., Medical malpractice: the good, the bad, and the ugly. Urologic Clinics of North America. 36(1): p. 101-10.

  2. Social, E. and A.C.o.G.R.P.B.M.D.U.S. Legal Issues Committee, Guidelines for expert witness testimony for the specialty of medical genetics. Social, Ethical and Legal Issues Committee, American College of Medical Genetics. Genetics in Medicine, 2000. 2(6): p. 367-8.

  3. American College of Emergency, P., American College of Emergency Physicians. Expert witness guidelines for the specialty of emergency medicine. Annals of Emergency Medicine, 2001. 38(4): p. 486.

  4. Guidelines for expert witness testimony in medical malpractice litigation. Committee on Medical Liability. American Academy of Pediatrics.[Erratum appears in Pediatrics 2002 Sep;110(3):651]. Pediatrics, 2002. 109(5): p. 974-9. http://pediatrics.aappublications.org/content/109/5/974.long

  5. Popp, R.J., et al., ACCF/AHA consensus conference report on professionalism and ethics. Circulation, 2004. 110(16): p. 2506-49. http://circ.ahajournals.org/content/110/16/2506.long

  6. Freeman, J.M. and K.B. Nelson, Expert medical testimony: Responsibilities of medical societies. Neurology, 2004. 63(9): p. 1557-8.

  7. Williams, M.A., et al., American Academy of Neurology qualifications and guidelines for the physician expert witness. Neurology, 2006. 66(1): p. 13-4.

  8. Committee on Ethics, A.C.o.O. and Gynecologists, ACOG Committee Opinion No. 374: Expert testimony. Obstetrics & Gynecology, 2007. 110(2 Pt 1): p. 445-6.

  9. Fife, C.E., et al., Legal issues in the care of pressure ulcer patients: key concepts for healthcare providers--a consensus paper from the International Expert Wound Care Advisory PanelCopyright.[Erratum appears in Adv Skin Wound Care. 2010 Dec;23(12):540]. Advances in Skin & Wound Care, 2010. 23(11): p. 493-507.

  10. Jena, A.B., et al., Malpractice risk according to physician specialty. New England Journal of Medicine, 2011. 365(7): p. 629-36.

  11. Localio, A.R., et al., Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III. New England Journal of Medicine, 1991. 325(4): p. 245-51. http://www.nejm.org/doi/full/10.1056/NEJM199107253250405

  12. Brennan, T.A., C.M. Sox, and H.R. Burstin, Relation between negligent adverse events and the outcomes of medical-malpractice litigation. New England Journal of Medicine, 1996. 335(26): p. 1963-7. http://www.nejm.org/doi/full/10.1056/NEJM199612263352606

  13. Rogers, S.O., Jr., et al., Analysis of surgical errors in closed malpractice claims at 4 liability insurers. Surgery, 2006. 140(1): p. 25-33. http://www.surgjournal.com/article/S0039-6060(06)00058-4/abstract

  14. Collins, M.E., et al., Responsibility and reflection: understanding our responses to perceived errors. A response to Woodward, Lemer and Wu. Social Science & Medicine, 2009. 69(9): p. 1294-5.

  15. DesRoches, C.M., et al., Physicians' perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. JAMA, 2010. 304(2): p. 187-93. http://jama.ama-assn.org/content/304/2/187.long

  16. Wynia, M.K., The role of professionalism and self-regulation in detecting impaired or incompetent physicians. JAMA, 2010. 304(2): p. 210-2.

  17. Wynia, M.K., The short history and tenuous future of medical professionalism: the erosion of medicine's social contract. Perspectives in Biology & Medicine, 2008. 51(4): p. 565-78.

  18. Horton, J.B., et al., Expert witness reform. Plastic & Reconstructive Surgery, 2007. 120(7): p. 2095-100.

  19. Haack, S., Trial and error: the Supreme Court's philosophy of science. American Journal of Public Health, 2005. 95 Suppl 1: p. S66-73. http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2004.044529?url_ver=Z39.88-2003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%3dpubmed



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