Citizens Against Lawsuit Abuse of Central Texas

By Dr. Evelyn Tobias-Merrill and Dr. Thomas Caven
April 1, 2007

When a physician takes the stand as an expert witness, the Hippocratic oath to “do no harm” should apply. At least that’s what doctors themselves said in a recent survey. Unfortunately, not all witnesses in white coats – or more aptly, the lawyers who pay them – share this sentiment. An unsettling trend in medical expert testimony has emerged in our courthouses that physicians say discredits the medical profession, erodes patients’ confidence in doctors and threatens civil justice itself.

Medical expert witness testimony plays a vital role in the Texas civil justice system because judges and juries are asked to understand increasingly complex scientific and medical evidence in the courtroom. The problem arises when some personal injury lawyers hire their own so-called experts to provide the stamp of scientific authority to bolster a baseless case. Sometimes these witnesses are paid to deliver testimony based on questionable science or even fraudulent information. It’s a dangerous abuse and it affects every one of us.

When fraudulent testimony creeps into our justice system, it erodes the quality of our courts as well as the public’s confidence. Physicians agree that fraudulent testimony and questionable science pose a serious problem and threaten the credibility of expert witness testimony as well as the medical profession.

A recent survey of 636 Texas doctors conducted by Citizens Against Lawsuit Abuse showed that nearly three in five have personally seen or heard statements by a medical expert witness that they believed to be inaccurate or based on questionable science. It only takes a few bad actors to undermine justice.

Expert witness testimony is further complicated when some witnesses receive payments contingent upon the outcome of their testimony or are paid extra to produce specific findings that support the case of the lawyers footing the bill. In fact, a physician who conducted screenings for a silicosis case in Texas testified before Congress last year that the law firm trying the cases only paid him for positive diagnoses. All but about 100 of these silicosis cases were eventually tossed out because the judge determined the diagnoses had been “manufactured for money.” When “experts” are lured by greed to manufacture bogus diagnoses they threaten a critical part of our civil justice system and the public’s health.

Beyond greed and unethical financial arrangements, lack of witness expertise plagues our courts. More than eight out of 10 physicians surveyed recognize the problem of medical expert witnesses who provide testimony in subject areas in which they have little or no experience. Expert witnesses should be just that: expert. Judges, juries and justice itself depend on it.

Given how critical expert witness testimony is to our court system, when witnesses are compensated for supportive diagnoses, deliver questionable testimony or weigh in on issues about which they know little, our courts are damaged. The good news is, doctors – and legal watchdogs – agree, there is a solution that would help stamp out these abusive practices. Nine out of 10 physicians surveyed support the creation of a code of ethics to govern physicians’ conduct in providing expert testimony. Nearly all physicians surveyed – 93 percent – believe that medical expert witnesses should be sanctioned if their testimony is found to be fraudulent. Seventy-four percent believe those witnesses should be sanctioned in the state where they testified and in the state where they are licensed.

Most physicians take their role as medical experts very seriously and fiercely abide by their oath to “do no harm.” The same standards that apply in the exam room should apply in the courtroom when personal injury lawyers hire white coats to fill the witness stand. \

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Dr. Evelyn Tobias Merrill is a physician, a volunteer board member of Bay Area Citizens Against Lawsuit Abuse in Corpus Christi and a spokesperson for Sick of Lawsuits. Sick of Lawsuits is a public education campaign aimed at drawing attention to the healthcare emergency created by lawsuit abuse.

\Citizens Against Lawsuit Abuse is a nonprofit, grassroots movement dedicated to making the public better aware of the cost and consequences of lawsuit abuse. With local chapters across the state, CALA counts count more than 25,000 supporters among its ranks. For more information, please visit www.sickoflawsuits.org.

Dr. Thomas Caven is vice president, medical affairs and medical director with Brackenridge Hospital in Austin. He also serves on the Board of Directors, Citizens Against Lawsuit Abuse of Central Texas.