How State Associations Can Eliminate 'Plaintiff Shills' In Malpractice Cases

Patrick DeHeer DPM FACFAS

One of the most overlooked components of malpractice is the role of the expert witness. I have written about this in a previous blog, “Should Courtrooms Bar ‘Hired Guns’ As Expert Witnesses in Malpractice Cases?” (see http://tinyurl.com/7st2zlj).

As the President of the Indiana Podiatric Medical Association, one of my main focuses is malpractice reform in our state. The makeup of the malpractice review panel and holding expert witnesses accountable for their testimony are the two areas of my concern. Our board is trying to change these to improve the working environment in Indiana for its members. I would like to tackle the expert witness portion in this blog as it applies nationwide whereas the review panel makeup is more of a state issue.

Too many of our colleagues make a living traveling around the country as plaintiff shills, spewing vitriolic garbage with no basis and do so solely for the purposes of supporting the plaintiff’s case.

I would like to propose a similar arrangement to what we have in Indiana. Each state association would form a committee or use an existing committee such as an ethics committee to monitor this problem. The committee will serve as a liaison between its members and our primary surgical organizations: the American College of Foot and Ankle Surgeons (ACFAS) and the American Society of Podiatric Surgeons (ASPS). If the expert in question is another type of physician (i.e. an orthopedic surgeon), then the committee would contact his or her specific organization on behalf of the podiatric physician involved.

We do not have to reinvent the wheel either. The ACFAS has clearly defined the role and expectations of the expert witness in podiatric medicine. Let us look at some of the specific components the ACFAS established through The Foot and Ankle Surgical Expert Witness Testimony.1

“Foot and ankle surgeons are frequently called upon to provide expert medical testimony in legal or administrative proceedings. It is in the public interest for this testimony to be knowledgeable and objective. A foot and ankle surgeon must recognize a responsibility to provide testimony that is truthful, impartial, scientifically correct and in accordance with the merits of the case. To this end, the American College of Foot and Ankle Surgeons (ACFAS) have adopted the following Standards for Expert Witness Testimony. These Standards apply to all ACFAS Fellows and Members who provide expert opinion services to attorneys, litigants, or the judiciary in the context of civil or criminal legal matters and include written expert opinions as well as sworn testimony.”1

The second sentence of the above paragraph, “… testimony to be knowledgeable and objective,” is where many break this standard established by ACFAS. These cowards often portray their opinions as the only standard of care and misrepresent the actual standard of care. I believe this is where the most common egregious ethical break in standards occurs.

Lines four and five instruct the witness to “provide testimony that is truthful, impartial, scientifically correct and in accordance with the merits of the case.” The plaintiff experts also often completely ignore this provision. Impartiality flies out the door the minute an expert inserts his or her own opinion that varies at all from any evidence-based medicine.
The expert may be able to refer to one article that, for example, states the use of a screw to fixate a bunion deformity is not the standard of care. At the same time, numerous articles state the use of screws to fixate bunions is medically acceptable. I realize that this is a sophomoric and extreme example, but I am only trying to emphasize my point.

Establishing Consequences For Plaintiff Experts Who Deviate From Accepted Standards For Expert Witnesses

I would encourage readers to visit www.acfas.org/expertwitness/ and check out the specific components (impartial testimony, subject matter knowledge, qualifications and compensation) of expert witness standards of care established by the ACFAS.1 I believe these standards are the way to remove the lying, deceitful, disgraceful podiatric physicians from the legal process.

The idea I have in mind is if podiatric physicians are involved in a malpractice case and feel that the plaintiff’s expert has deviated from these standards, they would then file a complaint with their state association. The appropriate committee of the state association would impartially review the expert’s testimony. If the committee finds a deviation in ethical standards, the state association would then file a censure with the ACFAS or ASPS on behalf of the involved podiatric physician.

These surgical organizations must then do what is right and strip the guilty parties of their affiliations or membership with those organizations. A professional plaintiff expert witness with no affiliation with a surgical organization is worthless in malpractice lawsuits involving surgical cases. Medical malpractice cases will no longer use such witnesses and they will be run out of the system.

I am by no means a Pollyanna. If a podiatric physician has broken the standard of care and is judged fairly and impartially, so be it. However, too many times, a review board has deemed our colleagues guilty of breaking the standard of care simply because of the influence of an unethical plaintiff expert. I implore the state associations to make this a priority. Stand up for your membership.

Reference
1. Available at www.acfas.org/expertwitness/

Comments

I have been a practicing trial attorney for 35 years. For that entire time, I have specialized in medical malpractice cases. For 15 years, I defended hospitals, physicians and other health care providers. During the past 20 years, I have represented individuals and families who have suffered serious injuries or death of a family member due to medical negligence.

I believe that I have measured insights into "expert witness" issues.

Your comments about "shill" expert witnesses is one-sided and lacks perspective.

In my experience, there are an equal, if not greater, number of physicians and health care providers who provide testimony on behalf of defendants that is totally lacking in merit or medical or scientific basis. The reason for such "shill" testimony on behalf of defendants is that defense counsel MUST come up with a defense expert to put on the stand during his case to defend his client,no matter how egregious the error. Virtually every defense firm has a "go-to" expert that it can call up to defend horrific care. It is a bit like the criminal case in which the defense attorney always argues that his client is innocent. He or she has no other choice but to muster some defense, no matter how specious.

I would FULLY support such expert witness evaluation panels if defense experts would get the same scrutiny that plaintiff experts receive. If such defense "shills" would face similar sanctions, possibly it would reign in the most notorious of such practitioners.

Your comments do NOT address the issue of such shill defense experts. How can this be? Can you not conceive of physicians / podiatrists providing specious testimony to deny fair compensation to seriously injured victims of malpractice?

David Smith
Smith Zitano Law Firm
Sacramento Ca.

Hi David,

I absolutely think this should be a two-way street. It has been my experience on both side on the matter, that more often it leans to the plaintiff experts as the "shill." Either way, experts on both sides must be held accountable for their opinions.

Best wishes,
Patrick A. DeHeer, DPM

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