Expert witness guidelines: Pathologists given
  new order in the courtroom

July 2006
Feature Story

Ed Finkel

What if a pathologist called to testify as an expert medical witness about the interpretation of a case had followup information unavailable to the original pathologist, resulting in an opinion influenced by unrecognized hindsight bias?

What if a pathologist gives testimony that’s intentionally biased toward the interests of the plaintiff or defendant who hired the pathologist as an expert?

Might the expert witness pathologist work in a practice setting so different from that in which the alleged malpractice occurred that the jury is given an inaccurate view of the standard of care?

To answer these and other questions about courtroom testimony, the CAP has developed and is disseminating expert witness guidelines for the specialty of pathology. They are modeled after those of other specialty societies that serve anesthesiologists, emergency physicians, obstetricians and gynecologists, pediatricians, and others.

The CAP’s guidelines (Related article: Expert witness guidelines for the specialty of pathology) are likely to produce professional pressures to adhere to them and could very well be used to challenge questionable expert witnesses in court, either by getting a biased or misinformed expert disqualified as a witness or by turning up the heat during cross-examination.

The CAP’s House of Delegates requested guidelines over concerns that “inaccurate or unethical expert witness testimony was degrading the practice of pathology,” says Dennis O’Neill, MD, chair of the CAP Member Development Committee. “If somebody is giving inaccurate expert witness testimony, and they’re doing this in multiple settings, or even in one setting if it establishes a precedent, it can create a significant problem for the practice. That was the concern.”

The House asked Dr. O’Neill’s committee to research the issue, discuss it with other pathology-related associations, and formulate guidelines through which the College would establish a peer-review system for expert testimony. “They weren’t specific about how we were going to do this,” he says, “but they wanted us to take steps to do away with inaccurate expert witness testimony.”

The now-completed guidelines are intended to be straightforward, says Dean Pappas, MD, chair of the CAP Member Benefits Committee and of the work group that formulated the guidelines. “There’s nothing particularly groundbreaking in the material,” he says. “If someone did neuropathology as part of a rotation as a resident 20 years ago, they shouldn’t hold themselves out as an expert… If you’re going to say it, you should be able to stand by it.”

When expert witnesses receive compensation, Dr. Pappas says, it shouldn’t be tied to the outcome of the case. “You may be swayed in your opinion,” he says. “It’s asking people to do their job right. Look at the case, the literature, [and] consider all the information before you reach an opinion. Don’t do it for money. Don’t do it if you’re not comfortable in that zone of specialty. Don’t do it for the wrong reason.” Pathologists should use the guidelines for how to “comport themselves if they’re an expert witness,” says Dr. O’Neill, of Manchester (Conn.) Memorial Hospital. “They will be used not only by the expert witnesses, but also by legal counsel…to cross-examine various witnesses.” He adds: “We want anybody testifying in a civil suit regarding the practice of pathology to be aware of these guidelines, and we want legal counsel to be aware of them as well, so that everybody is held to the same standards.”

The guidelines will have legal force to the extent that a court accepts and enforces them, says Jack Bierig, an attorney with the Chicago firm of Sidley Austin LLP who helped develop the guidelines. “What these guidelines are trying to do is to give a court a basis for judging whether it should admit the testimony of a pathologist as an expert. One of the things that I tried to do in my review of the guidelines, in fact my main consideration in reviewing them, was to write the guidelines in a way that would cause a court to accept them,” he says.

In that regard, the key issue is ensuring that the guidelines do not seem biased toward the defendant, which can be a risk—whether reality or just perception—when a physician group develops guidelines on expert testimony, Bierig says.

“Physicians are inclined to support the defendant in malpractice cases,” he says. “To the extent that the goal was to get impartial courts to adopt the guidelines, in their evaluation of whether a particular pathologist should be permitted to testify, I saw my role as trying to make the document as thoughtful and as neutral as possible, consistent with what the College was trying to achieve in expert testimony.... If this document were perceived as a document designed to protect pathologists in malpractice cases, the courts wouldn’t give it any credence.” A central tenet of the guidelines is that an expert witness should be willing to submit his or her work to peer review. Such a provision can be controversial even if no sanctions are associated with it, Bierig says.

“I thought that the peer-review provision passed the test of being neutral and would not be perceived by a court as unduly pro-defendant. At the same time, such a provision serves a very important role in terms of putting pathologists on notice that their testimony will be subject to review by their peers,” he says, adding that he believes “if a court were to review the guidelines, it should be very favorably impressed by their thoughtfulness and by their impartiality, and therefore be more likely to adopt the guidelines.” Bierig sees multiple other reasons why the guidelines serve a useful purpose. “One, the guidelines caution that an expert witness should be in practice with current experience in the area in which the testimony is to be given,” he says.

“Two, the guidelines warn against testimony by a person without expertise in the area of pathology in which he or she is asked to testify…. For example, a pathologist who is not well versed in gynecologic pathology may not understand the nuances of Pap test review.” Third, he says, expert witnesses must be fair and objective. “There is a temptation when someone calls you as an expert witness and offers you a lot of money to want to be on the side of the person who calls you. These guidelines admonish pathologists who are considering becoming expert witnesses to include all relevant information in forming their opinion.”

Though it remains to be seen precisely how the guidelines will be used in a courtroom, Bierig can foresee a number of possibilities. “Let’s say a plaintiff in a Pap test case calls a pathologist. The lawyer for the defendant can use these guidelines as a basis to ask the court not to recognize that individual as a qualified expert—if in fact the individual does not satisfy the guidelines.” That the nation’s leading pathology association developed the guidelines is potentially significant to a court or jury, he says.

If the person does testify, the opposing counsel can ask whether he or she has completed the “thorough review of appropriate medical records and contemporaneous literature” called for by the guidelines, or whether the person has excluded relevant information, Bierig says. “That kind of guideline gives counsel who’s cross-examining the pathologist a good basis for the cross-examination.” Most important, Bierig says, “If someone…gives testimony in a previous case not based in science and the relevant facts, then the opposing counsel has a powerful tool for either seeking the exclusion of the witness or vigorously cross-examining the witness. The guidelines will be used to ask courts to exclude expert testimony by those who don’t meet the criteria, or as one mechanism to bolster the cross-examination of a person who is testifying in a manner contrary to the guidelines.”

Though a set of guidelines was not as ambitious as the House of Delegates had in mind, the Membership Committee found a few obstacles in the path of a formal peer-review system for expert testimony, Dr. O’Neill says. For one, no standard definition exists of what expert witness testimony is and how it relates to the practice of medicine. “In some states, expert testimony is considered the practice of medicine, but in many it is not,” he says. “There was no consensus…. If it’s not the practice of medicine, we have no jurisdiction.”

Second, Dr. O’Neill says, scientific truth and legal truth are very different concepts. “What one person might regard as fraudulent testimony, another person might just regard as a difference of opinion,” he says. “In order to create a case against somebody who is allegedly giving fraudulent testimony, you need to establish that the person is being purposely fraudulent. That’s a very difficult thing to prove. That person is going to say, ‘That’s just my opinion. I’m not giving fraudulent testimony. Let the judge decide whether it’s valid or not.’” Elliott Foucar, MD, of Albuquerque, NM, who will give a presentation at the CAP ’06 annual meeting on expert testimony, says the primary objective of the jury system is to bring community standards to bear on an allegation of malpractice. “The objective of the system is not to come to a conclusion that a group of unbiased pathology experts would agree with,” he says. “In fact, the system is intentionally designed in a manner that ensures that it will not come to that kind of decision in many cases.”

Most pathologists do not realize this, at least until they’ve gained experience by being sued or functioning as expert witnesses, Dr. Foucar says. “They don’t understand, I don’t believe, that when they get into the legal system, it’s basically a matter of balancing rights,” he says. “It’s not a matter of coming to a conclusion that would mirror the view of unbiased experts. The medical opinions of physicians hired by the opposing sides are a very important part of the process, but the importance is based on whether an opinion is credible to a lay juror, not on whether an unbiased expert would agree with the opinion.”

If lawyers wanted a system that generated conclusions that unbiased experts would agree with, he says, they could of course design one. “The jury listening to the expert testimony is going to be a mixture of people from the community, and the jury system is designed with the primary objective of coming to a conclusion that reflects the views of these citizens,” Dr. Foucar says.

The third problem the committee encountered in its research is that expert testimony standards are not consistently enforced, Dr. O’Neill says. “The courts have been less than helpful with this because the person who really decides whether an individual can give expert testimony is the judge,” he says. “You have to say something pretty outrageous for the judge to say, “That’s fraudulent.” When poor-quality expert witness testimony makes it difficult for juries to come to medically rational decisions about the particular case they’re evaluating, there is not only the problem of damaging the cause of a particular defendant or plaintiff, Dr. Foucar says, but also of “capricious tort decisions markedly diminishing the value of the tort system in error prevention.

“Unfortunately, most of the procedures and policies used by the tort system were developed years before the patient safety movement,” he adds, “and therefore it’s not surprising that the legal system does not pursue the goal of reducing medical errors in any proactive, systematic way.

“If you were really going to use tort decisions to help root out error, you wouldn’t have lawyers, judges, and juries with no scientific background playing such a dominant role in the process,” he says. Furthermore, there would be an effective way to deal with inaccurate or untruthful expert medical testimony in terms of either perjury, which is a criminal charge, a civil lawsuit against an expert who provides substandard testimony, or professional sanctions.

“As things stand now, if I am an expert witness and everything I say is junk, the legal system has little interest in pursuing perjury charges against me,” Dr. Foucar says. “It’s also very difficult for the victim of junk expert testimony to get any kind of satisfaction out of the civil system, and the courts have made it legally hazardous for physicians to even conduct peer review of expert testimony, much less impose professional sanctions for junk testimony.”

Suits are often settled in a confidential manner, which is another feature that makes the tort system “largely irrelevant” to preventing future errors, Dr. Foucar says. “How do we learn from that?” he asks. “Dr. Jones gets sued, and then there’s this bunch of legal thrashing around followed by a confidential settlement. There’s no systematic collection, analysis, or distribution of malpractice data by the courts that could be used to correct flawed practices.” Other practical problems loomed in setting up a full peer-review process, Dr. O’Neill says, ranging from the additional resources the CAP would need to the potential for legal action on the part of those whose testimony received a thumbs-down.

“We would have to set up a separate section within the College. It could be an unbelievably detailed process,” he says. In addition, the committee foresaw “the potential for adverse legal implications. It was not in the College’s best interests to do soup-to-nuts.”

Those who developed the guidelines were “fairly unanimous” in deciding they should be guidelines only, without an enforcement mechanism, says Dr. Pappas, of Lawrence Memorial Hospital, Medford, Mass. “The CAP didn’t want to be acting as a referee in a battle of experts.”

Dr. Foucar can understand why. “Lawyers are about rules and laws. Pathologists attempting to improve the function of the legal system are about guidelines,” he says. “Unless you’re willing to put an awful lot of money and organizational resources into the problem, you have no business writing or enforcing rules.” In the current legal environment, where specialty organizations such as the CAP lack liability immunity, evaluating expert testimony and then imposing sanctions for even the most flagrantly substandard testimony is unlikely to be worth the trouble, he says. Defendants such as the CAP as an organization or those individuals who performed peer review on an expert’s testimony would probably win if that expert filed a lawsuit against them, “assuming all review procedures were in perfect legal order and closely followed.

“But a lawsuit could take years of legal fighting,” Dr. Foucar adds, “and who’s got the time and money for that?”

For these reasons, Dr. O’Neill says, medical societies ranging from the American Medical Association to state and specialty societies lack jurisdiction and have “pretty much stayed out of this,” as have most medical state licensing boards.

“The courts have not been terribly aggressive, the state societies and specialty societies are kind of ambivalent, and with a few exceptions, state licensing boards have not gotten into it,” Dr. O’Neill says. “Nobody is really enforcing this. If a specialty society like CAP suddenly got aggressive about this, we would be way out on a limb. We said, ‘Let’s try to address the House’s concern, but let’s try to do it in a very circumscribed way.’” Dr. Foucar thinks the guidelines have the potential to create social pressure for higher-quality testimony. “A pathologist might think, ‘You know, I could make some money going into a deposition or courtroom and saying things I would never say at grand rounds. But pathologists are starting to pay attention to the quality of expert testimony. I know lawyers, judges, and jurors can’t really evaluate the scientific content of my testimony—but what would my colleagues think?’”

Related Links

• Expert witness guidelines for the specialty of pathology