Monday, January 23, 2006

"Ethics" or "Witness Tampering"? (Part 1)

Because robust debate is best promoted, sometimes, by robust positions . . .

Four Theses: In general, (1) "ethical" rules adopted by medical organizations that provide for sanctioning members based on the substance of their testimony as expert witnesses are not in fact "ethical," nor even a legitimate exercise of the organizations' authority over matters within their institutional competence, (2) but rather represent a real or attempted usurpation of the legal system's legitimately exclusive authority in regulating the presentation of evidence, (3) and may even be viewed as a form of witness tampering subject to criminal sanction under current law in some jurisdictions. (4) If the adoption of such rules by professional medical societies would not be counted as witness tampering or obstructon of justice under current law, maybe it should be.

The Example of Choice: Walter Olson recently drew to his readers' attention a Position Statement on expert testimony promulgated by the American Academy of Emergency Medicine. It is chosen as the exemplary vehicle for this discussion not for the sake of picking on AAEM, but rather because some of the Position Statement's provisions are typical of measures adopted of late (or proposed for adoption) by other professional medical societies.

Disclaimer Regarding the Example of Choice: For the record, there is no intention to accuse AAEM, or any member of AAEM, of committing any crime. The arguments to be raised here involve broad issues about institutional competence to regulate expert testimony. The conduct of any particular organization or individual in any specific jurisdiction may or may not be lawful under the relevant governing law and the peculiar facts and circumstances of each case.

Anatomy of the Example of Choice: The AAEM's Position Statement is not merely a hortatory document. It explicitly provides that violation of the principles in the Position Statement may be considered a sanctionable violation of the AAEM's Code of Ethics. The Position Statement is set forth in full below:

The American Academy of Emergency Medicine believes the following principles to be essential to the ethical conduct of an expert offering opinions or testimony in medical legal matters. Violation of these principles constitutes a violation of the Academy's Ethics policy and may be subject to sanctions as described therein.

Expert Testimony as Medical Practice

Provision of opinions, reports, reviews or testimony as a medical expert is part of medical practice. As such, an expert witness providing such services is subject to all applicable rules, regulations and standards as well as the oversight and authority of the appropriate state licensing body.

Qualifications of Expert

An expert witness offering testimony related to emergency medical care must be

1. board certified by The American Board of Emergency Medicine or the American Board of Osteopathic Emergency Medicine; and

2. actively engaged in the provision of emergent medical care to patients.

Scope of Testimony

An expert witness offering testimony should

1. offer testimony only about care that falls within the expert's area of expertise and training;

2. conduct a thorough review of relevant material including, but not limited to, medical records, test results, and witness statements or depositions prior to offering testimony or opinions;

3. review and be prepared to describe medical literature relevant to the care provided, including that literature provided by other witnesses when possible;

4. offer complete testimony (whenever necessary to avoid incomplete or inaccurate testimony, the expert must offer appropriate qualifications or clarifications); and

5. explicitly state whenever an opinion offered is not conclusive, as well as explain the reason(s) why it is not.
Duty to the Court

At all times, an expert witness offering testimony must

1. impartially assist the Court and its officers on relevant matters within the expert's area of expertise;

2. not advocate for the party who engages him or her as an expert witness;

Duty to Confer

At the direction of the court, an expert witness will confer with other witnesses to

1. attempt to reach agreement on matters within the field of expertise of the expert witnesses;

2. prepare and sign a joint witness statement describing matters of agreement and disagreement among the witnesses, along with the reasons for disagreement.
In following the court's direction, the expert must exercise independent and professional judgment and must not act on the instructions or directions of any person to withhold or avoid agreement.

Professional Reimbursement

An expert witness, being engaged in the practice of medicine, shall be entitled to fair reimbursement for all work performed. In establishing a fee structure, the expert witness shall refuse payment based on case outcome.
That should suffice to lay the groundwork for the discussion to follow in subsequent posts.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.