PEDIATRICS Vol. 111 No. 3 March 2003, pp. 711
Unreliable Medical Experts
To the Editor.—The Committee on Medical Liability has noted that not all medical experts testified within the boundaries of a reliable, objective, and accurate analysis of the standard of care.1 The Committee offered a number of significant recommendations to address this critical issue.
The etiology of unreliable and inaccurate testimony has not been well-evaluated.
During a 10-year period providing claims management advice for the children’s hospital where I practiced, 1 possible cause was noted. The fees that physicians charged for expert witness services far exceeded the reimbursement for providing care to children. The fees charged for pediatric expert witness services were 5 to 10 times greater than the average reimbursement of a pediatrician’s clinical services.
This observation is indirectly supported by other data. The cost of expert witness services per claim closed had more than tripled in the 10-year period from 1985 to 1995 ($742 vs $3064),2 as reported by the Physicians Insurers of America, an organization of physician-directed malpractice carriers. This increase far exceeded the rate of inflation, as expert fees adjusted for 1995 dollars nearly tripled ($1040 vs $3064).2 The total cost of defending a claim had only doubled in the same period.
Physician expert services were the most numerous of the expert services offered in a recent edition of the ABA Journal classified section. There were over 20 offers for medical expert services, 25% of a 2-page expert ad section. Insurance expert services were the second most common with 5.3
Although most physicians would not be influenced by reimbursement, the possibility that unreliable and inaccurate testimony is the result of fiscal incentive must be considered. To neutralize this incentive, the Committee might consider a limitation on expert fees. The AAP might require that to be a member, all fees from expert services that exceed rates of reimbursement for clinical activity should either be waived or donated to an appropriate children’s charity. In addition, it could limit the proportion of income derived by members from expert services. Such requirements would remove both the possible incentive for substandard review and the perception that expert witnesses may be "hired guns."
William J. Wenner, Jr, MD, FAAP
El Macero, CA 95618-1061
REFERENCES
- American Academy of Pediatrics, Committee on Medical Liability. Guidelines for expert witness testimony in medical malpractice litigation.
Pediatrics.2002; 109
:974
–979
[Abstract/Free Full Text] - McAbee GN. Reining in experts could reduce litigation costs.
AAP News.2002; 20
:208
. (Quoting PIAA data)
[Free Full Text] - Legal Tender: Witnesses/experts and professionals. ABA Journal.2002; 88(June) :76 –77
In Reply.—
Dr Wenner is correct regarding poor data about the pervasiveness and causes of invalid expert testimony. Only 1 study in Massachusetts looked at neurology expert witnesses over a 10-year period.1 This study (which had flaws) determined that 56% of plaintiff expert testimony was erroneous. The study did not address fees.
Implementing controls over fees is another issue, however. But given the (AAP’s) status as a charitable organization focusing on education, research, and child health advocacy, it is not appropriate for the Academy to set fees for members to charge for services (even for nontraditional services such as providing expert witness testimony). Limiting expert fees would be difficult to enforce without requiring disclosure of personal financial information to the AAP. This may be an appropriate role for deans or departmental chairs in academic settings or administrators of large medical practices. Limitations could be placed on the hourly rate of compensation and proportion of time spent serving as an expert witness. Care should be taken to ensure that the rates are not set too low or the limitations on time too restrictive lest they discourage participation of competent and responsible witnesses.
Fees for expert testimony are determined for the most part by market forces—supply and demand. Part of the costs stems from the process itself. Conscientious expert witnesses often spend considerable time reviewing records, reading medical literature, and preparing for deposition and trial testimony. One of the few articles addressing expert witness fees found that 80% of pediatricians charge an hourly rate comparable to what they would make in patient care activities (ie, 63% charged <$200/hour and 18% charged a flat fee).2
The policy statement was developed with 2 overarching goals in mind: 1) to improve the quality of medical expert testimony; and 2) to encourage pediatricians to fulfill civic and professional duties to serve as witnesses in malpractice cases. For these reasons and because enforcement and sanctioning programs attempted by other specialty organizations have been so fraught with problems, the Committee on Medical Liability opted instead to focus on recommendations addressing:
- Advocacy and education
- Relevant qualifications
- Unbiased and complete testimony
- Standards of care
- Assessing breach of care and cause
- Ethical business practices
Perhaps for future iterations of the statement there will be sufficient evidence in the literature to support more specific recommendations on structuring fees, marketing, and limiting amount of income derived from expert testimony or the proportion of professional time devoted to such activities. The Committee thanks for Dr Wenner for his comments and welcomes further discussion on this topic.
Charles H. Deitschel, Jr, MD, FAAP on behalf of the AAP Committee on Medical Liability
REFERENCES
- Safran A, Skydell B, Ropper S. Expert witness testimony in neurology: Massachusetts experience 1980–1990. Neurol Chronicle.1992; 2 :1 –6
- Boenning D, Selbst S, Freed LH, Groves A. The pediatrician as expert witness.
Am J Dis Child.1992; 146
:1107
–1109
[Abstract/Free Full Text]
PEDIATRICS (ISSN 1098-4275). ©2003 by the American Academy of Pediatrics
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