Expert witness certification
dpriver
witness arena such that the discipline can become more dependably
honest and accountable. We have not communicated as an affinity group
in many months as there does not appear to be any new ideas as to how
to achieve this goal. For this reason, I would like to submit a
concept which is by no means new, but which may be worthy of
discussion. I'm thinking about the concept of creating a certification
process for expert witnesses. I'd be interested in what all of you
think about the feasability of this idea. We would have to begin by
organizing ourselves into an entity which might be called The American
Board of Medical Expert Witnesses. A committee would need to be
appointed to determine what the criteria for certification would be.
Once that's in place, we'd need to apply to the ABMS (American Board
of Medical Specialties) for board status. Our existence would need to
be publicized so that those who wished to achieve "board
certification" could submit applications. Such applications would need
to be accompanied by a fee which would establish an account to cover
the various organizational expenses. Once a critical mass of certified
experts exists, it will become feasible for us to create a directory
for attorneys to employ when selecting expert consultants. Juries
would be informed about the certification status (or lack thereof) of
a testifying expert. Most critically, there would become standards of
behavior which can be enforced by the implied threat of various levels
of discipline, up to and including expulsion and loss of
certification. One can only imagine how a jury would respond to
finding out that: 1. the expert testifying is or is not certified, and/
or 2. he or she has been subject to discipline possibly including
decertification. Clearly, this is a major undertaking and would likely
be vigorously opposed by those with a stake in the status quo. I put
it forward as simply an idea for our various members to consider. Your
input is welcome. Happy Holidays to all!
David Priver, MD
Arnold Cohen
Arnie
Remember- Every pregnant woman needs to be immunized against the Flu and H1N1 Flu.
Also-Wash your hands
Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu
>>> dpriver <dpriv...@gmail.com> 12/23/2009 4:11 PM >>>
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Mayer, Dan
Hi all,
A very happy holiday season to all, and I hope that the new year will bring a lot of good to more people than the last.
It seems to me that there are two levels of certification regarding expert witnesses. The first is the certification to be a specialist of the same or comparable specialty as the physician being sued. This is regulated by a myriad of state laws and some are more strict or lax than others. Having a uniform definition with judicial discretion to rule in special cases that are not clearly related to a single specialty would solve this problem.
The second level is who is allowed to be an expert. It seems as if some of the specialty organizations have taken this on by having review panels to evaluate individual practitioner's testimony but only if a complaint is registered. As I have said in previous emails to this group, I believe that this process is stacked against the plaintiff and powerless if the physician being complained against is not a member of the organization. However, these organizations could be the ideal vehicle for this 'certification' if they could come up with a system that would certify physician experts that was separate from the other functions of the organization. Perhaps a sub-group of the organization which would be dedicated to certification of expert witnesses and education of the organization's members in the principles of risk management.
Finally, there is the idea of a separate "board" or certifying agency that David suggested. I assume that you mean that membership would be "required" as a condition of being able to be certified by the courts as an expert. Such an organization would have to be completely disconnected from any other professional medical organization, but could be a provider of risk management or medical-legal continuing education, but not the "…become a better or more dangerous expert ". The organization would also be a vehicle for evaluating the quality of medical expert testimony and could be 'hired' by the courts to do this.
I would be against the idea of having experts certified by a board for expertise in experting. Sorry about that sentence, but I am afraid that David's suggestion of board certification in experting would become that. We don’t want to remove the human element in the legal process, we just want to make sure that the testimony given is accurate scientifically.
Thanks for listening,
Best wishes,
Dan
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dpriver
this concept is to go forward. As always, the devil is in the details.
I don't think I'm far enough along in this process to begin to focus
on exactly what such an agency would certify beyond just the general
concepts of qualification, honesty, and some sort of ongoing quality
analysis. I'm glad to see some specialty societies, such as my own
ACOG going ahead with expert discipline. There are, however, some
problems here. Courts are permitting those being peer reviewed to sue
those who file grievances, as they apparently don't see expert
testimony as being the practice of medicine. As Arnie points out, we
might have problems with ABMS as there is "curriculum" involved. I
think it would be hopelessly complicated to have certification
separately for each specialty, although we would certainly need
consultants from each so as to determine what standards of care exist.
Let's keep this discussion moving and see if a kernel of a project can
be germinated here.(As an OB/GYN I had to use some reproductive
verbiage; I'm sure you understand).
David
On Dec 24, 5:59�am, "Mayer, Dan" <May...@mail.amc.edu> wrote:
> Hi all,
>
> A very happy holiday season to all, and I hope that the new year will bring a lot of good to more people than the last.
>
> It seems to me that there are two levels of certification regarding expert witnesses. �The first is the certification to be a specialist of the same or comparable specialty as the physician being sued. �This is regulated by a myriad of state laws and some are more strict or lax than others. �Having a uniform definition with judicial discretion to rule in special cases that are not clearly related to a single specialty would solve this problem.
>
> The second level is who is allowed to be an expert. �It seems as if some of the specialty organizations have taken this on by having review panels to evaluate individual practitioner's testimony but only if a complaint is registered. �As I have said in previous emails to this group, I believe that this process is stacked against the plaintiff and powerless if the physician being complained against is not a member of the organization. �However, these organizations could be the ideal vehicle for this 'certification' if they could come up with a system that would certify physician experts that was separate from the other functions of the organization. Perhaps a sub-group of the organization which would be dedicated to certification of expert witnesses and education of the organization's members in the principles of risk management.
>
> Finally, there is the idea of a separate "board" or certifying agency that David suggested. �I assume that you mean that membership would be "required" as a condition of being able to be certified by the courts as an expert. �Such an organization would have to be completely disconnected from any other professional medical organization, but could be a provider of risk management or medical-legal continuing education, but not the "...become a better or more dangerous expert ". �The organization would also be a vehicle for evaluating the quality of medical expert testimony and could be 'hired' by the courts to do this.
>
> I would be against the idea of having experts certified by a board for expertise in experting. �Sorry about that sentence, but I am afraid that David's suggestion of board certification in experting would become that. �We don't want to remove the human element in the legal process, we just want to make sure that the testimony given is accurate scientifically.
>
> Thanks for listening,
>
> Best wishes,
>
> Dan
>
> From: fellowship-for-accura...@googlegroups.com [mailto:fellowship-for-accura...@googlegroups.com] On Behalf Of missdeper...@aol.com
> Sent: Thursday, December 24, 2009 8:04 AM
> To: fellowship-for-accura...@googlegroups.com
> Subject: Re: Expert witness certification
>
> I agree, this should be pursued. �R. DePersio
>
>
>
> -----Original Message-----
> From: Geno...@aol.com
> To: fellowship-for-accura...@googlegroups.com
> Sent: Wed, Dec 23, 2009 5:15 pm
> Subject: Re: Expert witness certification
>
> GREAT IDEA.I doubt ABMS would take up the challenge, but perhaps the Amer Acad of Physican Specialists. (AAPS)
>
> For more options, visit this group athttp://groups.google.com/group/fellowship-for-accurate-courtroom-test....
>
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Arnold Cohen
I am not sure if it has any real power but in a deposition they will
ask if we have signed it.
As Dave said, societies are now being sued, and I believe one has lost,
in this area because of restraint of trade issues.
Arnie
Remember- Every pregnant woman needs to be immunized against the Flu
and H1N1 Flu.
Also-Wash your hands
Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu
>>> dpriver <dpriv...@gmail.com> 12/24/2009 11:53 AM >>>
--
artworks12
As a medically sophisticated plaintiffs attorney, I would relish the
idea of being able to locate "certified" experts in a unified
directory. Unfortunately, I see too many obstacles to this concept.
First, and foremost, there is an understandable hesitancy among the
medical specialty societies to support a system which ultimately may
find against their members, even in meritorious cases.
To be clear, any physician can, in theory, qualify to render
“expert” testimony. The issue is “What is his scope of expertise?”
Ultimately, to judge whether a medical expert is qualified, one would
need to retrospectively review his testimony to determine, first,
whether his testimony was fair and honest, and whether it fell within
the scope of his expertise.
In other words, I cannot imagine “certifying” “experts” to testify
without knowing how they have testified in the past, i.e. an expert
witness specialty could not function without perpetually grand
fathering in people. Catch-22, you can’t testify because you’re not a
member of the Society, and you can be a member of this society because
you haven’t testified.
If I might throw my two cents in regarding who is most qualified to
determine who should be an expert, it may surprise you that
plaintiffs’ attorneys are as a group, the least conflicted in terms of
the motivation to keep experts honest. The the plaintiffs’ attorney
has the most to gain by having a reliable panel of experts to choose
from, and the most to lose if he ends up investing in a case based on
the word of an “expert” who oversold his expertise. Additionally, the
plaintiff’s attorney is most vulnerable in terms of having his case
torpedoed by a hired gun.
Ultimately, I think the only solution would be certifying panels of
medically sophisticated attorneys, and physicians to review proposed
testimony on a case-by-case basis.
Arnold Cohen
We need to get specialty courts with unbiased experts to review cases and then only let those which are meritorious go forward and do away with settlements just because the risk of losing a large amount must be avoided at all costs.
This is not a plaintiff lawyer problem, the problem is with our own docs who are making a ton of money supporting the plaintiff lawyer.
Arnie
Remember- Every pregnant woman needs to be immunized against the Flu and H1N1 Flu.
Also-Wash your hands
Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu
Mayberg, Helen S
We need to get specialty courts with unbiased experts to review cases
and then only let those which are meritorious go forward
this needs a change that provides for experts to advise the court
rather than a free for all with experts for the attorneys
where there is uncontrolled and understandable secondary gain on all sides.
Helen
--------------------------------------------------
Helen S. Mayberg, MD
Professor, Psychiatry and Neurology
Emory University School of Medicine
Department of Psychiatry
101 Woodruff Circle
WMRB, Suite 4313
Atlanta GA 30322
phone: (404) 727-6740
fax: (404) 727-6743
email: hma...@emory.edu
-----Original Message-----
From: fellowship-for-accura...@googlegroups.com [mailto:fellowship-for-accura...@googlegroups.com] On Behalf Of Arnold Cohen
Sent: Tuesday, December 29, 2009 11:24 AM
To: Fellowship for Accurate Courtroom Testimony (FACT)
Subject: Re: Expert witness certification
Arnie
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Mayer, Dan
I suggest that attorneys be restrained from identifying themselves to their experts and should initially only send the medical records relating to the act of negligence. This way the experts are blinded to the nature of the case, the side who is asking for an opinion and the outcome, even the diagnosis. This will lead to more objective reviews in both sides of the bar.
Dan
________________________________________
From: fellowship-for-accura...@googlegroups.com [fellowship-for-accura...@googlegroups.com] On Behalf Of Mayberg, Helen S [HMA...@emory.edu]
Sent: Tuesday, December 29, 2009 11:38 AM
To: fellowship-for-accura...@googlegroups.com
Subject: RE: Expert witness certification
dpriver
to have previous testimony reviewed. I do not, however, see this as a
"catch-22". When a physician achieves certification, he/she has
customarily been in practice for some time, perhaps several years. It
is often the review of this prior practice that determines if
certification is awarded. By no means, is the physician prohibited
from practicing during this time. Likewise, an expert would not
prohibited from testifying just because certification has not been
achieved. As to the issue of creating specialty courts, I agree this
would be an ideal solution, but I see there being a great deal of
opposition to it from trial attorneys. Creating certification is
something we would not need any other profession's permission or
acquiesence to achieve.
DP
> > David Priver, MD- Hide quoted text -
artworks12
> When a physician achieves certification, he/she has
> customarily been in practice for some time, perhaps several years.
> from practicing during this time.
I’m puzzled by what you mean.
In general, certification follows a period of supervised
practice.
Outside of a brief period of board eligibility, most practice
settings
would not accept an uncertified physician as qualified to practice.
> Likewise, an expert would not prohibited from testifying
> just because certification has not been achieved.
Your original proposal suggested that once you achieved
a critical number of certified experts, a “noncertified”
expert’s testimony would be suspect.
Art Newmark, M.D., Esq.
Arnold Cohen
Also, defense lawyers don't stand to make huge amounts with a win even though they can just bill hourly rates forever.
Mayer, Dan
I suppose that my thoughts were that experts be hired "anonymously" by the attorneys who would not divulge the side of the bar that they represented. Of course, some physicians would know who they were working for. But it is possible that the attorneys and physicians could make a deal that cases be sent out anonymously and some kind of record kept with the court in which the case was filed or would be filed. I leave it to our attorney and judge members to come up with the solutions to the legal issues that this process raises. The experts could then meet with the attorneys (who probably cannot give up the adversarial method) and discuss the case, and find out which side they are on and what their opinions are.
Best wishes,
Dan
________________________________________
From: fellowship-for-accura...@googlegroups.com [fellowship-for-accura...@googlegroups.com] On Behalf Of Arnold Cohen [Coh...@einstein.edu]
Sent: Tuesday, December 29, 2009 8:53 PM
dpriver
I'm afraid you are not correct in some of these statements.
Certification follows a period of entirely unsupervised practice which
can range to as much as two years. During this time, the physician is
what is called "board eligible", but he may practice unrestricted
during that time. Certainly, if a physician fails to certify after the
alloted time, that is grounds for suspicion about his competence, but
he would not be restricted from practicing. If a system of
certification of expert witnesses were to evolve, I'm sure there would
be a period of time in which an expert would be fully allowed to
testify during which time he could be considered "board eligible".
There would be nothing that would automatically render his testimony
suspect. At some point, he would be permitted to apply for
certification. If he either failed to apply or failed to win
certification, that information could be provided to a jury. There
would, however, be no formal restriction on his right to testify. All
we're really talking about here is the same sort of competence,
accountability, and honesty which applies to medical practice, which I
think is needed if the public is to hold the medical tort system in
high regard (which I don't believe it does now).
DP
> > > - Show quoted text -- Hide quoted text -
Judge Thomas
of some extensive trial time, interestingly, in the medical
malpractice area. I have read with interest your discussion on
certification of experts, and my first thought is that it seems to be
a rather cumbersome project. Let me get your suggestions on why the
use of independent experts by trial judges on case-specific issues
would not be more streamlined and easier to use. I know that the
selection of the independent expert is the critical component, but I
have done it in cases where the physicians recommending the
independent expert were case-blind and only questions relating to
medical issues, not general opinions, were used. I would appreciate
your thoughts.
Neil