Expert Witness Guidelines: It's Our Turn

Since my solely consultative infectious diseases (ID) practice, in Nassau County, New York, was first created, in 1983, we have been named in 41 lawsuits. Although neither the Infectious Diseases Society of America (IDSA) nor I could obtain specific statistics regarding the number of ID physicians named in malpractice actions, I suspect our experience is likely shared by those of you who also practice in highly litigious communities. ID specialists are at great risk for being named in malpractice suits because of our care for the most complicated and seriously ill patients, many of whom have nosocomial infections or complications of the illnesses that they were admitted to the hospital for. We must also confront frivolous suits generated solely for financial rewards, which often have no merit and involve no deviation from accepted practice standards. Consequently, ID physicians readily understand the urgent need for medical liability reform.

However, even with the reelection of President Bush and his prioritization of tort reform, and medical liability reform specifically, it is apparent that a solution at the federal level, whether it be capping rewards for pain and suffering or any alternative proposal, is hopelessly mired in the politics of Washington, D.C. Even at the state level, where physician flight and lack of access to some subspecialty care because of malpractice concerns is increasingly felt, referenda regarding medical liability reform were rejected in 2 of the 4 states in which they were on the ballot in the elections of November 2004 [1].

Hence, with no apparent external remedy in sight, the IDSA, through the Clinical Affairs Committee and with the significant input of Dr. Tim Kuberski, and in response to the growing concerns of its members, strongly felt it was the right time to address those medical liability issues directly related to the actions of ID physicians. This is the genesis of the “Guidelines for ID Specialists Serving as Expert Witnesses” published in this issue of the journal [2].

These guidelines recognize the need and ethical obligation of ID physicians to provide expert testimony in judicial proceedings and, in particular, in malpractice cases. Only a fellow ID physician can discuss the appropriateness of care rendered in our subspecialty. These guidelines attempt to ensure the availability of competent and impartial ID expert witnesses by first defining those qualifications needed to be an ID specialist, declare that being an expert witness should not be the only professional activity of the physician, and demand that their financial compensation never be contingent on the outcome of the legal proceeding. Most importantly, these Guidelines clearly affirm that the expert witness provide truthful, unbiased, evidence-based testimony in a totally nonprejudicial fashion and with recognition of the standards of ID practice in the community where and when the alleged malpractice occurred.

To many of us, these Guidelines, which incorporate criteria already established and published by other national physician organizations, seem straightforward and fair [3–7]. However, in reality, their recommendations are often not followed. Too many of us have seen colleagues, serving as expert ID witnesses, lose their objectivity as they became advocates for the side paying them, whether plaintiff or defense. These practices are wrong and unethical and must stop.

These Guidelines are an initial effort and are expected to be reviewed, amended, and honed over time. However, what is obviously missing are any punitive steps to be taken against ID physicians who do not adhere to these recommendations. Similar to those of all other national organizations, our Guidelines review the potential criminal penalties for perjury as an expert witness, but we do not emulate the American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons, who have both threatened their members with “censure, suspension or expulsion” if they fail to maintain “high ethical standards” as expert witnesses [3].

For several reasons, I strongly believe the IDSA is correct to reject the role of enforcer of these guidelines. First, the IDSA currently has neither the administrative staff nor the funds to perform these duties without sacrificing its advocacy and educational responsibilities. Also, save for membership, it has no leverage to use to ensure adherence to the Guidelines. Second, there may be other means for enforcement. Expert witness testimony is a matter of public record and, as such, is subject to independent peer review, which raises the potential for action. Also, the American Medical Association has already stated its belief that false medical testimony should be reported to state medical licensing boards for appropriate disciplinary action and, at its Interim Meeting (in Atlanta, Georgia, December 2004), it made the issue of medical expert witness standards a legislative priority [8]. Indeed, should state or independent peer review committees be formed, we must be willing to enthusiastically serve on them, to guarantee that ID expert witnesses, by their behavior and performance, honestly follow the letter and the spirit of these recommendations. Last, I believe the lawyers will initially best ensure adherence, by having acceptance of the IDSA guidelines become a jury-recognized requirement for the competence and impartiality of an expert ID witness.

In conclusion, I believe ID physicians need to vigorously support these guidelines as we and our Society attempt to address a real, albeit small, component of the medical liability crisis—one that is truly in our power to control.

• Received March 6, 2005.
• Accepted March 14, 2005.

• © 2005 by the Infectious Diseases Society of America