 | Donald O. Quest, MD, is the 2006-2007 AANS president. |
The AANS Code of Ethics addresses, in part, expert witness testimony. Such testimony as part of the practice of medicine is indeed an obligation of members of the medical profession. The AANS is joined in this view by many prominent medical societies, among them the American Medical Association and the American College of Surgeons. The AANS, the AMA and the ACS all provide their members with guidance on how to act professionally and ethically in the legal arena. While documentation of this guidance is readily available from each of these organizations, a brief review of salient points follows.
| When the Professional Conduct Program was initiated, guidelines for expert witness testimony were developed to ensure a standard of quality and impartiality on both sides of professional liabilty cases. |
The AMA offers guidance on medical testimony in its Code of Medical Ethics, which affirms that a physician”s participation in the legal system is “;an ethical obligation.” In 2004 the AMA issued a report on medical testimony that addresses the physician”s ethical obligation to provide evidence in court, the general qualifications necessary for those who testify, and the importance of honest testimony. This report states that “expert witnesses should avoid inflammatory accusations…and must not merely offer speculations but rather be able to substantiate claims on the basis of experience, published research, consensus statements or evidence-based guidelines….”
The AMA report also stresses that testimony is to be impartial and has a higher goal than that of supporting the claims of either prosecution or defense: “Although the testifying physicians” services may have been sought primarily by one party, [physicians] testify to educate the court as a whole.” The report further calls for impartial testimony that must not be false or misleading and for physicians providing expert testimony to have “recent and substantive experience or knowledge in the area in which they testify.”
The report’s conclusion reinforces the concept of professional conduct through adjudication of ethical infractions via a program that employs due process:
“Organized medicine…[has] important roles to play in promoting the
ethical conduct of physician witness activities. With careful attention to due process…organizations can help maintain high standards for medical witnesses by assessing claims of false or misleading testimony and issuing
disciplinary sanctions as appropriate.”
The AANS Code of Ethics states in part that “expert testimony should reflect not only the opinions of the individual but also describe where such opinions vary from common practice; the expert should be engaged in active practice of surgery or be able to demonstrate enough familiarity with present practice to warrant designation as an expert, and should champion the truth [rather than] the cause of one party or other.”
The AANS also developed the Rules for Neurosurgical Medical/Legal Expert Opinion Services document, which calls upon the neurosurgeon” to be an impartial educator for attorneys, jurors, and the court…not to be evasive for the purpose of favoring one litigant over another …and to review all pertinent available medical information prior to rendering an opinion.”
Complaints of ethics code violations are evaluated by the Professional Conduct Committee through the Professional Conduct Program. The program was initiated 25 years ago, and its procedures have undergone some modifications over time. The program’s premise is that membership in a professional organization requires conduct which meets a high professional standard.
| The AANS Rules for Neurosurgical Medical/Legal Expert Opinion Services document calls upon the neurosurgeon “to be an impartial educator for attorneys, jurors, and the court …” |
The AANS bylaws detail the process that ensues when a charge of unprofessional conduct is brought by one AANS member against another. It is the duty of the AANS Professional Conduct Committee to address complaints on an impartial basis, to conduct hearings where appropriate with due process protection for all parties involved, and to make unbiased recommendations to the AANS Board of Directors. Members of the committee, experienced and well-respected senior neurosurgeons, are appointed by the AANS president with ratification by the Executive Committee. The PCC members devote considerable time to the program, spending hours reviewing each case and participating, usually for a full day, in hearings held twice yearly in conjunction with the AANS and CNS annual meetings.
The committee reviews the submissions of both the complainant and respondent and makes a decision as to whether or not unprofessional conduct is apparent. Either a hearing is scheduled or the case is dismissed (and 35 percent of the cases brought before the committee are dismissed). The complainant and respondent may each have counsel in attendance at the hearings, and the proceedings are recorded by a court reporter. After both sides have made presentations, cross-examination has occurred, and the committee’s questions have been answered, the committee goes into executive session to determine whether unprofessional conduct has been established and, if so, what penalty is appropriate. If an adverse action (censure, suspension, or expulsion) is recommended, the respondent has the opportunity to appeal to the AANS Board of Directors and further to the general membership at the annual business meeting if necessary.
To date there have been 80 complaints filed and 65 of these have involved expert witness testimony. Sixty hearings have been held, resulting in nine letters of censure, 22 suspensions and five expulsions. There have been five repeat offenders.
Not surprisingly the AANS Professional Conduct Program has gained the attention of the plaintiff bar. Although the AANS program has been challenged in state and federal courts, thus far it has withstood all challenges. A federal appeals court judge praised the program, stating that “this kind of professional self-regulation furthers, rather than impedes, the cause of justice” and acknowledging that “judges need the help of professional associations in screening experts.” A number of other medical societies have used the AANS Professional Conduct Program as a model for their own.
The goal of the AANS Professional Conduct Program in hearing these complaints is not to discourage members from testifying on behalf of either plaintiffs or defendants but rather to promote the integrity of testimony on both sides of the litigation process. Medical malpractice occurs, and when it results in litigation expert witnesses are necessary to plaintiffs and defendants so that justice can prevail.
It is essential that AANS members participate in the judicial process as expert witnesses, and it is incumbent on every member who testifies as an expert to be familiar with the AANS Code of Ethics and Rules for Neurosurgical Medical/Legal Expert Opinion Services. Expert testimony must be informed, objective, impartial, and medically sound. Litigants, juries, judges, and the public should be able to rely on that.
Donald O. Quest, MD, is the 2006–2007 AANS president.
| AANS Professional Conduct Committee W. Ben Blackett, MD, JD, chair Russell M. Pelton, JD, parliamentarian Ulrich Batzdorf, MD Martin B. Camins, MD Steven L. Giannotta, MD Hal L. Hankinson, MD Roberto C. Heros, MD Philip R. Weinstein, MD |
For Further Information
- AANS Rules for Neurosurgical Medical/Legal Expert Opinion Services
- American College of Surgeons, www.facs.org
- American Medical Association, www.ama-assn.org
- Blackett, WB: AANS testimony rules rewritten: New rules for neurosurgical medical/legal expert opinion services. AANS Bulletin 13(1):33, 2005. www.AANS.org, Article ID 21843
- Pelton, RM: Professing professional conduct: AANS raises the bar for expert testimony. AANS Bulletin 11(1):7–13, 2002. www.AANS.org, Article ID 9916