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November 1, 2008

The whole truth: Serving as an expert witness

Taking the Stand  -  Is expert witness work for you?

Taking the Stand - Is expert witness work for you?

It looks glamorous on our television screens each week: Physicians in a seat of authority in the courtroom, pointing the finger at the bad guy in a calm, cool style. They are Matlock’s right-hand men and women, Arthur Branch’s buddies. But in real-life courtrooms from New York City to Atlanta, Las Vegas to Miami, the drama surrounding expert witness services is tame - until the physician exits the courthouse doors.

The American Medical Association’s stance on expert witnesses

When it comes to taking the stand, the American Medical Association is in favor of it, and actually encourages members to serve as impartial expert witnesses. The AMA is, however, on the record in favor of medical associations punishing those physicians who violate pre-set ethical standards. In a nutshell, it considers expert witness activities to be the same as practicing medicine, so what you say on the stand is subject to peer review. Individual medical societies put out statements using different words, but they boil down to similar sentiments.

And just like that, the topic hits treacherous waters.

Yet it was a simple decision for John Lavorgna, MD, a retired orthopedic surgeon in San Francisco, to jump into the business. Lavorgna now works for Weitz Medical Management, a firm that liaisons between physicians and referring attorneys in that city. His first partner back in the 1970s did workers compensation and civil litigation evaluations and offered Lavorgna the overflow. "It’s an entirely different discipline from the scientific background of orthopedics," he says.

Likewise, Michael Williams, MD, a neurologist, who is the medical director of the LifeBridge Health Brain and Spine Institute in Baltimore, was approached while on the faculty at Johns Hopkins to look over a case early in his career. "It wasn’t something deliberate, it was more of an accident," he says. He says he’s done a handful of cases in his career.

"Probably the thing that attracts most physicians to it is the income, and it usually pays more per hour than most physicians can earn seeing patients," says Williams. "But doing so requires a real commitment and real work, and I think while a number of physicians are prepared for that, there are also those who don’t realize what they are getting into."

Any physician could potentially provide value

to the legal system, although specialists tend to be more

in demand than primary care doctors.

Just the facts, ma’am

Any physician could potentially provide value to the legal system, although specialists tend to be more in demand than primary care doctors, in Lavorgna’s experience. Residents rarely have the experience yet to bring to a courtroom; Dan Larriviere, MD, JD, an assistant professor of neurology at the University of Virginia School of Medicine and an academic instructor at that university’s law school, recommends that physicians have at least five years of practice under their belts before taking on this sideline. "And (speaking) as an attorney, physicians who do almost no clinical work any more are less than ideal," he says. "If it’s been 10 years since you’ve seen a patient, it might make your testimony a bit less credible."

When Tekla Schlaich, the director of operations for American Medical Forensic Specialists, Inc. (AMFS), a medical expert witness recruitment firm based in Emeryville, California, scans a CV, she’s looking for fairly straightforward items: The candidate must be board-certified and actively practicing. His medical-legal work should make up no more than 3 to 5 percent of his overall income, lest he cross the line into becoming a hired gun as opposed to a mainstream doctor who occasionally testifies. And she wants to see a CV thick with lectures, papers, and grants in full detail, not abbreviated versions. AMFS’s medical board approves who to keep in its stable - currently, the firm can draw on more than 8,500 physicians in 250 specialties around the country.

Even after clearing these hurdles, however, presentation still plays a large role in who will get work. For instance, the witness has to look professional in front of a judge and jury. "Good communication is essential, which should come naturally to physicians who are used to explaining medical information to their patients," says Schlaich.

That’s certainly a good cornerstone, says Lavorgna, but there are important twists. "A good report backs up all conclusions, and that can be difficult simply because physicians are not accustomed to justifying a conclusion regarding recommendations for medical treatment. The legal world is different - you have to prove your points or come within reasonable probability or certainty," he says. For instance, it’s entirely possible the attorney on the other side of the courtroom will ask if chances of an outcome are 49 percent or 51 percent, and the expert has to not only make a decision but back that up.

"I sometimes say that the doctor has to take off the white coat in order to do expert witness work," Lavorgna says. "The goal of most of this work is to resolve cases. The better the physician is at that, the more desirable he is as a witness."

Physicians providing value to the legal system

Dan Larriviere, MD, JD, is assistant professor of neurology at the University of Virginia School of Medicine and an academic instructor at that university’s law school. Larriviere recommends having at least five years of practice experience before becoming an expert witness. "Physicians who do almost no clinical work anymore are less than ideal,

Dan Larriviere, MD, JD, is assistant professor of neurology at the University of Virginia School of Medicine and an academic instructor at that university’s law school. Larriviere recommends having at least five years of practice experience before becoming an expert witness. "Physicians who do almost no clinical work anymore are less than ideal," he adds.

The other jolt for some physicians comes when a case requires them to dig into disease causes. Say, for example, the situation involves rheumatoid arthritis. The attorneys may focus on whether a particular trauma precipitated the condition, and they will pick at what the odds are - with reasonable probability - that the two are connected. At that point, Lavorgna says, the physician must change her mindset, and stop looking at the situation as though she is trying to improve the patient’s condition "but as an expert witness who needs to focus closely on literature review," he says.

Reviewing medical cases and histories is a large portion of an expert witness’s job, but doctors can’t simply choose the paperwork and skip the courtroom appearance. If they are only willing to do this part of the job, they won’t get much work, even though lots of cases never get past the paperwork stage. Should the case they’ve reviewed make it to trial, they’re strapped in for the duration of the ride. "It right may require much more time than many physicians anticipate," says Williams, "because to do it right, you’ll review all the records sent to you, all of the scans, and formulate an assessment, judgment, recommendation. The deposition can take many hours out of a day.

"And if you misjudge the amount of time necessary for the preparation and go into a deposition incompletely prepared, then you end up not doing a very good job. You can get caught on the stand with errors of self-contradiction," Williams says.

That’s what happened to Julius Piver, MD, JD, who practices gynecology in Chevy Chase, Maryland. He failed to follow up on a prior deposition and was nicked by it at trial. "It will never happen again," he says.

That’s why Larriviere recommends physicians review all the evidence that relates to medical information just before a trial starts. They should also have a thorough understanding of the state of the science that existed when the case arose and rehearse explaining that in a variety of ways.

But insiders agree there’s no pressure, direct or subtle, from the hiring attorney to draw specific conclusions when a physician first receives a case. Payment is to compensate for the time a doctor spends studying the evidence, not as a reward for the answer. "Your real purpose is to identify the truth," says Williams.

The numbers written on that paycheck are a bit shadier. In San Francisco, the rate is up to $600 a hour, Lavorgna says, but he is expected to work reasonably fast so he doesn’t run up an exorbitant bill. Schlaich says workers compensation hearings have a fee schedule built into the labor code. "They are paid well for their time," she says, "but it’s not something to retire on. It’s more to use for a trip or put toward the kids’ college tuition." For one thing, the time-intensity means most physicians can’t handle more than three or four cases a year, and the more they earn from this angle, the less likely they are to be called back to the stand.

It happened to me

Ismael Nuño, MD, the cardiac surgeon in charge of the open heart program at the University of Southern California’s Medical Center in Los Angelos County, got more than he bargained for the first time he took the stand. "It really rattled me," he says. Now, his name is on a database for expert witness work

Ismael Nuño, MD, the cardiac surgeon in charge of the open heart program at the University of Southern California’s Medical Center in Los Angelos County, got more than he bargained for the first time he took the stand. "It really rattled me," he says. Now, his name is on a database for expert witness work.

When real life imitates drama in an expert witness’s day, the result is a story the physician will likely never stop telling:

As the cardiac surgeon in charge of the open heart program at Los Angeles County’s University of Southern California’s Medical Center, Ismael Nuno, MD, had the random luck of treating a patient who was released after a heart attack and went home to kill his wife a week later. Nuno had flirted with being an expert witness but hadn’t gotten past the review stage to the courtroom with any of his cases. So he can only plead ignorance as the reason he blew off a summons to appear in Pomona court for the trial.

His first indication something was amiss was the police officer staring through the observation window while he operated on a patient one morning. As he was leaving the room, the officer approached him. "Dr. Nuno, I was sent by the superior court judge to see that you appear at 1 p.m.," the young man announced. Nuno protested that he couldn’t possibly find time in his schedule by then, so the officer handcuffed him and walked him out the front door of the hospital, still dressed in his bloody scrubs from the operation.

In short order, Nuno found himself on the stand being asked if he had sent the patient home with a prescription for narcotics or other painkillers. "It’s OK if he did," said the plaintiff’s

lawyer, "because we can enter a plea of insanity or that [the patient] wasn’t medicating properly at the time." Suddenly, both sides erupted in a firestorm of shouts and accusations, with both sides shouting for Nuno to keep silent. The judge was banging his gavel and threatening contempt of court while Nuno slumped lower in that chair by the minute, realizing the whole time that these attorneys were going down the wrong path altogether with the medication angle. After all, the edema from the heart-lung machine can cause cognitive learning loss.

"I’d always envisioned that in my first experience in the courtroom I’d be wearing a suit and answer the questions professionally," says Nuno. "but this was two standard deviations to the left. It really rattled me." It took him nearly a year to gather his courage to volunteer for the courtroom again, but today he’s on the Martindale Hubble databases for work.

Zvi Herschman, MD, an anesthesiologist and forensic scientist with Premiere Forensic Consultants in Long Island, New York, deftly put an end to a line of questioning with humor.  Opposing counsel repeatedly asked whether oral medication was better. Herschman tried politely to clarify "better" but it turned into verbal volleyball. "This is a serious matter and at some point, I had to find another technique to highlight the fact that I don’t get the question. I can’t just look quizzical like a dog all day," he says.

So on the fourth "is it better?" round, Herschman came back with "better than rectal?" The comment tickled the jury, and even the attorney was thrown off his game by laughing.

Meanwhile, Julius Piver, MD, JD, a gynecologist in the Washington, D.C. area, may never learn the outcome of a trial in Puerto Rico at which he testified in 2005. He was called to talk before a judge about births during which the baby’s shoulder gets stuck. "P.S. I do not speak Spanish," Piver says. "So they had me seated next to an interpreter. I’m not sure everything was communicated that should have been because we still don’t have a ruling."

Do you have what it takes to be a physician expert witness?

As chair of the American Academy of Neurology’s ethics, law, and humanities committee, Michael Williams, MD, is part of the team that reviews many of the expert witness complaints against fellow neurologists. "Sometimes you can tell the expert has done a superb job and the complaint was filed because someone is angry that they lost," he says. "And there are other times you review the testimony and have to conclude that the physician did a very bad job of doing what an expert witness is supposed to do."

Williams insists a poor job doesn’t have a thing to do with which side a physician is on in a malpractice suit, but in how the expert provides his testimony, justifies his statements and so forth. Still, enough physicians are queasy enough about testifying against a colleague that they will shun working for a prosecutor at all, but they won’t find work with AMFS. Schlaich insists an open mind is a requirement. To help ease consciences, however, the firm presents the facts of a case without mentioning which side has come calling for an opinion.

Williams also urges physicians to play for both sides, insisting that in the end, this is the definition of civil justice. "We don’t want to prosecute somebody improperly or exonerate someone unjustly," he says, and expert witness testimony is actually protected from libel and slander lawsuits, so you can’t be sued for your words. The medical associations, on the other hand, do wield standards over your head, but the University of Virginia’s Larriviere says as long as you do your homework properly and honestly, you’re safe from being hauled in front of your medical society and censured, suspended, or expelled. It is possible for two doctors to disagree on the stand and both be right with the profession.

According to Williams, the true conflict lies outside the courtroom. Williams admits. "They’re afraid if they work for a prosecuting attorney, colleagues will stop referring patients to them," he says. However, that never happened in his medical career, and he’s lost track of the number of times he’s worked for the prosecuting side. Nor has prosecution testimony ultimately hurt anesthesiologist and forensic scientist Zvi Herschman, MD, who works with Premiere Forensic Consultants in Long Island, New York, although one attorney tried to hold that against him on the stand during a time when Herschman himself was the defendant.

"He kept saying, ’You testify against doctors at times.’ He couldn’t say ’hired gun’ because his own expert was up next, so he kept repeating that to really emphasize it for the jury," Herschman says. "Finally, I said, ’Counselor, in this business, some days you’re the pigeon, and some days you’re the statue."

So, as long as you don’t testify outside your range of expertise or make extraordinary claims with no basis in science, you should sleep like a baby at night, insiders say. Williams sums it up this way: "Never say anything on the witness stand that would get you laughed at if you made that same statement at a scientific meeting."

November-December 2008 The Whole Truth Wanted WitnessesTaking a stand

Fortunately for physicians, a real courtroom bears little resemblance to the television dramas that entertain us. "The only thing that comes close is the dress," says Herschman. For starters, this isn’t scripted, so the next question can come out of the blue, and the possibilities are potentially infinite. "Television courtroom scenes are very clipped, brisk and someone has dictated the inflections and delivery. In real life, you have to think on your feet, and there are times when you say, ’Let me digest that question for a second,’ while you stare at the ceiling," he says.

On the other hand, few citizens realize the power an expert witness has in that seat next to the judge. Unlike anyone else who takes the stand, physicians in this position are allowed to draw conclusions and state them openly to the jury. Other witnesses are not allowed to make statements to the guilt or innocence of the accused - they can only report what they saw or heard. "Basically, we can say to the jury what they should decide in their deliberations," Williams says.

Naturally, such influence won’t go unchallenged, and that’s where a physician’s verbal skills can make or break the case. Yes, the hiring attorney will go over your testimony and work with your delivery. Herschman used to teach the master’s students in his forensic examination course how to hone their skills so that they could artfully present their findings in an honest manner. "It’s a long process in a sense. Some people are born graceful, some can grudgingly be taught, and some people are just clods," he says.

Then opposing counsel gets its turn, and the next few minutes to hours are not for the thin-skinned. The game is to undermine the physician’s veracity and reputation, so an important part of the expert witness’ art lies in knowing when to remain silent and let the judge and attorneys argue it out. Medical academies and societies will occasionally offer lectures and courses on the ins and outs of the verbal jousting, but it’s difficult to teach how to avoid what Larriviere sees as an enormous ethical jackpot that exists at this stage.

"The hardest guideline to follow in my opinion is the prohibition against being an advocate for the side that hired you. People - not just physicians - have a tendency to adopt the views of their side as a competition, and it’s natural to do the best you can to persuade everybody that you’re right," Larriviere says. "Not taking a side is hard when the attorneys are questioning you under cross-examination and you have to defend your testimony." His advice: The more you are aware of this trap, the more trouble an attorney has in leading you beyond where your opinion should stop.

"You have to be aware of it from the time you get the file to when you give someone your initial opinion in that courtroom," says Larriviere.

The rewards of serving as an expert witness

So just why do physicians run the gauntlet? Williams rarely sees expert witness listed as a strength on a colleague’s CV. Most patients are blissfully unaware of a doctor’s legal work, so it has zero impact on a perceived reputation. Herschman found the fact that he knew how to handle a prosecuting attorney quite handy in cases where he was the defendant. And Lavorgna likes the fact that while trials can wreak havoc on a schedule - particularly for surgeons - he’s never on call at night. "It’s very satisfying from an intellectual point of view and different from the practice of medicine, so that makes it interesting," he says.

"It’s not easy work, but it’s challenging," Piver agrees. "I went into this because I thought I might need some income after I retired. I discovered that expert witnessing isn’t physically taxing, but it’s mentally demanding. It’s very rewarding when you are an advocate, not for one side of the other, but for your own opinion."

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