EXPERT TESTIMONY
RISK MANAGEMENT
Donna L. Vanderpool, MBA, JD
Vice President, Risk Management
PRMS, Inc.
ACONP
CME DISCLOSURE STATEMENT
OUR FOCUS
What courts, regulators, and professional
associations are saying about:
Performing IMEs (
briefly
)
PROFESSIONAL ORGANIZATIONS’
ETHICS CODES AND NON-MEMBERS
Sugarman v. Board of Registration in Medicine
,
662 NE2d 1020 (Mass. 1996)
Courts may expect even non-members to
follow relevant professional ethics codes
POSSIBLE CAUSES OF ACTIONS
RELATED TO FORENSIC ACTIVITIES
TORTS:
Unintentional
Medical malpractice
Ordinary negligence
Intentional
Assault and battery
Breach of contract
Defamation
Infliction of emotional distress
Breach of confidentiality, invasion of privacy
Misrepresentation
CRIMES:
Perjury
Statutory violations – mail fraud, wire fraud
Etc.
THE LAW IS EVOLVING –
THERE IS NO UNIFORMITY!
LIABILITY FOR PERFORMING IMES
Duty owed to evaluee
Courts are shifting away from the traditional view
(no physician-patient relationship, so no duty)
toward imposing a duty, even if limited
Trend is to impose malpractice liability without the
traditional physician-patient relationship
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#1 Duty not to injure evaluee
Majority view - usually always required
Recognized in caselaw
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#2 Duty to properly diagnose
Minority view currently
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#3 Duty to disclose / inform evaluee about a
potentially serious medical condition
Majority view
May be required by regulation
Recognized in caselaw
New Jersey Administrative Code
Board of Medical Examiners
Regulation 13:35-6.5:
…
(f) Where a third party or entity has requested
examination, or an evaluation of an examinee, the
licensee rendering those services shall prepare
appropriate records and maintain their
confidentiality, except to the extent provided by this
section….
3. should the examination disclose abnormalities or
conditions not known to the examinee, the
licensee shall advise the examinee to consult
another health care professional for treatment
…
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#4 Duty to maintain confidentiality
Majority view
Recognized in caselaw
Required by state and federal statutes and regulations
42 CFR Part 2
HIPAA
Required by professional organizations, including
AOA
AAN
APA
AAPL
AMA
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#4 Duty to maintain confidentiality – disclosure only of
relevant information
Regulation
Case law
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#4 Duty to maintain confidentiality – disclosure only of
relevant information
The Genetic Information Nondiscrimination Act of 2008
(GINA)
Title II - protects employees, potential employees, and
former employees from an employer’s discrimination
based on genetic information
“Genetic information” is defined to include
family history
When requesting medical information, employers should
direct the healthcare provider not to include genetic
information
LIABILITY FOR PERFORMING IMES
Four possible duties owed to evaluee
#4 Duty to maintain confidentiality – other issues
Dangerous evaluees
Graham v. Dacheikh
, 991 So.2d 932 (Fla. App. 2 Dist.
2008)
Defense hired neurologist to do IME of plaintiff in auto accident case
Plaintiff subpoenaed neurologist's prior IME reports
Defense moved to quash
Trial court ordered neurologist to release, but allowed redaction of
evaluee names
Defense appealed
LIABILITY FOR PERFORMING IMES
Confidentiality – HIPAA’s Privacy Rule
Applies to all uses and disclosures of covered entity’s
PHI, regardless of the type of service rendered or the
existence of a physician-patient relationship
Civil and criminal penalties
§164.508(b)(4)(iii): specifically allows IME providers to
require the evaluee to sign an authorization for the
release of PHI to the third party requesting the IME as
a condition of performing the IME
LIABILITY FOR PERFORMING IMES
Confidentiality – HIPAA’s Privacy Rule
Evaluees would have access to the covered
entity’s PHI
Access to covered entity’s PHI is one of
only two mandatory disclosures under the
Privacy Rule
The federal Privacy Rule pre-empts other
laws that are less stringent (provide less
rights of access to individual)
Compliance and Enforcement
Private Practice Revises Process to Provide Access to Records
Covered Entity: Private Practices
Issue: Access
9. At the direction of an insurance company that had requested an
independent medical exam of an individual, a private medical
practice denied the individual a copy of the medical records. OCR
determined that the private practice denied the individual access to
records to which she was entitled by the Privacy Rule. Among
other corrective actions to resolve the specific issues in the case,
OCR required that the private practice revise its policies and
procedures regarding access requests to reflect the individual's
right of access regardless of payment source.
www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/index.html
LIABILITY FOR PERFORMING IMES
From the New Hampshire Board of Medicine newsletter (November 2001):
“
Medical Records:
Notice to all physicians
– Another issue which generates
many avoidable complaints to the Board of Medicine involves patient efforts to
retrieve their medical records. It appears that some physician offices may not
fully understand obligations to make these records available. When patients
request medical records from your office, please be advised that you are
required by law to promptly release a copy of
all
medical records in your
possession, including medical records received from other providers…Also,
patients are entitled to a copy of IME medical records...”
Immunity – two types
Quasi-judicial immunity
– protects the
evaluator’s performance of judicial activities;
generally only available where provider is
retained by and reports directly to the court
Witness immunity
– protects only the actual
testimony given in a judicial proceeding;
generally precludes claims based on any
statements, opinions, or findings that are set
forth in any report or in any testimony
LIABILITY FOR PERFORMING IMES
Licensing Board Complaints
No requirement of damages
No time limit
Boards investigate complaints, no matter how
meritless
ADMINISTRATIVE ACTIONS
From the Maryland Board of Physician Quality Assurance newsletter (June
1995 BPQA News):
“…
Of the many complaints about the performance of physical
examinations alleging misconduct, there is one type of patient evaluation
that precipitates a disproportionate number of allegations. This is the
independent medical examination, often referred to as the IME
.…When the
results of an independent medical evaluation fail to support the patient’s claims,
the patient may respond with a complaint to the BPQA that the examination
was incomplete, erroneous, false, or improperly performed. Occasionally, even
sexual misconduct is alleged...”
www.mbp.state.md.us/pages/newsletters.html
Rhode Island Board of Medical Licensure and Discipline
Policy Statement for Delineation of IME vs. Follow-up Care
The Board considers it generally inappropriate for a physician to perform an
Independent Medical Evaluation (IME)/Independent Insurance Evaluation and to
offer or serve as subsequent treating provider for a patient. If a physician who
performs an IME is to serve as a treating provider then a sufficient span of time
must elapse such that no reasonable individual could conclude a contingent
relationship between the IME determination and the decision to pursue
subsequent care with the IME physician or the IME physician’s practice group.
IME LIABILITY – IN A NUTSHELL
Harm claimed by an evaluee can include mental harm
Trend is to impose liability without the traditional
physician-patient relationship
The following duties, at least, will generally be owed to
evaluee:
To not injure evaluee
To disclose information to evaluee about a
potentially serious medical condition
To maintain confidentiality
Immunity generally only applies if IME physician is
actually retained by the court – not just retained by a
party pursuant to court order
IME LIABILITY – RISK MANAGEMENT ADVICE
Understand your duties owed to evaluee
Communicate clearly to manage evaluee’s expectations:
IME is being performed at request of third party
IME is different from treatment
Document thoroughly
Consider using “consent to evaluate” document setting out
relationships, etc.
Protect confidentiality:
Inform evaluee of to whom information will be disclosed
Obtain evaluee’s written authorization prior to releasing
information
Inform the evaluee of significant medical findings and, if
appropriate, recommend follow up with another provider
Understand that if treatment or advice is provided, the duty
changes to the full duty owed by treating providers
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Civil liability
Criminal liability
Discipline by licensing board
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Civil Liability
Generally, states recognize an immunity from
liability for statements made in judicial proceedings
Particularly true in cases where expert
witness is being sued by adverse party
CALIFORNIA ATTORNEY GENERAL
OPINION #03-1201
. . .
CONCLUSION
When a physician testifies as an expert in a civil
proceeding regarding the applicable standard of medical
care and whether the defendant has breached that
standard, the physician may not, on the basis of his or her
testimony, be held liable in a subsequent tort action
brought by the adverse party, but may be subject to
professional discipline by the Medical Board of California if
the testimony constitutes unprofessional conduct.
. . .
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Civil Liability
However:
Adverse experts have been sued
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Civil Liability
And:
Court-appointed expert has been sued
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Criminal Liability
Rare…but possible
U.S. Department of Justice Stephen J. Murphy United States Attorney Eastern District of Michigan
Suite 2001 211 West Fort Street Detroit, Michigan 48226-3277 Fax: (313) 226-3561
For Immediate Release
Contact: Gina Balaya (313) 226-9193
Dec 1, 2006
EVENT: Indictment
Defendant: Dr. Alex Zakharia
MIAMI SURGEON INDICTED
Dr. Alex Zakharia, 68, a cardiovascular surgeon licensed in Florida and practicing in the Miami area, was indicted by a federal grand jury in Detroit on charges of perjury, mail fraud and wire fraud, United States Attorney Stephen J. Murphy announced today.
Murphy was joined in the announcement by Daniel D. Roberts, FBI Special Agent in Charge.
The indictment charges that between late 2001 and late 2003 Dr. Zakharia held himself out as an expert witness in medical malpractice cases. It alleges that in order to enhance his credibility as an expert witness in cases involving coronary artery bypass grafts, Dr. Zakharia falsely testified that he had performed at least 10-12 such surgeries each year, when in fact he had performed none for the several years before his testimony. The indictment alleges that Dr. Zakharia used the United States mail and interstate communications to defraud a plaintiff who relied on his testimony in McCatty v. Clancy, a
malpractice case that was pending in Oakland County Circuit Court. It also alleges that Dr. Zakharia gave false testimony concerning his coronary artery bypass graft experience during a deposition in Rodgers v. United States, another malpractice case that was pending in the United States District Court in Detroit.
U.S. Department of Justice Stephen J. Murphy United States Attorney Eastern District of Michigan
Suite 2001 211 West Fort Street Detroit, Michigan 48226-3277
For Immediate Release
Contact: Gina Balaya (313) 226-9758
Sept, 2007
EVENT: Guilty Plea
Defendant: Dr. Alex Zakharia
MIAMI SURGEON PLEADS GUILTY
TO CONTEMPT BASED ON FALSE TESTIMONY
Dr. Alex Zakharia, 69, a cardiovascular surgeon licensed in Florida and practicing in the Miami area, pled guilty to a contempt of court, United States Attorney Stephen J. Murphy announced today.
Murphy was joined in the announcement by Daniel D. Roberts, FBI Special Agent in Charge.
Dr. Zakharia pled guilty before Hon. Paul Borman, United States District Judge for the Eastern District of Michigan. He admitted that in 2002 he had testified as an expert witness on behalf of the plaintiff in a lawsuit charging a doctor at the
Veterans Administration hospital in Ann Arbor with medical malpractice in connection with a coronary artery bypass graft. He also admitted that during the deposition, he falsely bolstered his credibility as an expert by creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts over the preceding several years, when in fact he had done no such surgeries. Finally, he admitted that when his having created this false impression came to light, it destroyed his credibility as a an expert witness, and thereby obstructed the administration of justice.
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Discipline by licensing board
Providing expert witness testimony can =
practicing medicine,
even if
there is no physician-
patient relationship and no treatment is provided
Per:
AOA (Policy H289-A/08)
AMA (Policy H-265.993)
FSMB
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Discipline by licensing board
Practicing medicine in a state =
being subject to regulation / oversight
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Discipline by licensing board
Consequences of regulation could include,
but are not limited to
:
Disciplinary action (e.g., license revocation /
suspension, monetary fines)
Litigation to appeal disciplinary sanctions
Report to NPDB
CALIFORNIA ATTORNEY
GENERAL OPINION #03-1201
(http://ag.ca.gov/opinions/pdfs/03-1201.pdf)
. . .
Accordingly,
the Board may discipline a physician for unprofessional conduct even
though the actual misconduct does not constitute the practice of medicine or
cause harm to individual patients
, as long as the misconduct relates to the physician’s
fitness or competence to practice medicine. Conceivably,
such misconduct would
include court testimony given on behalf of a plaintiff or defendant as to the
appropriate standard of medical care and whether the defendant has breached that
standard.
(See
Austin v. American Ass’n of Neurological Surgeons, supra,
253 F.3d at
pp. 971-974;
Joseph v. Board of Medicine
(D.C.App. 1991) 587 A.2d 1085,
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Discipline by licensing board
Areas of regulation include:
Disciplining for “unprofessional conduct”
Determining when a state license is required
Determining standards for expert witness
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Peer review and discipline by professional
organizations
AOA
AMA
State associations
AMERICAN OSTEOPATHIC ASSOCIATION
H289-A / 08 Expert Witness & Peer Review
(As amended 7/20/2013)
Includes, among other items:
∎
Expert testimony = the practice of medicine
∎
Failure to provide truthful testimony = unprofessional
conduct subject to peer review
∎
Prohibits testimony that is false, misleading, or without
medical foundation
∎
Opposes contingency fee
AMERICAN OSTEOPATHIC ASSOCIATION
H289-A / 08 Expert Witness & Peer Review
(As amended 7/20/2013)
∎
Expert witness qualifications:
∎
Current, unrestricted license to practice in the same
state as the defendant physician
∎
3 years removed from residency training, and engaged
in active medical practice or have teaching experience,
or any combination thereof in the same specialty or
subspecialty, for at least 3 years prior to testimony
∎
3 years removed from residency training requirement is waived
if expert has completed a forensic science, pediatric child
abuse, or other approved forensic fellowship and where the
testimony specifically relates to that training
∎
Etc.
AMERICAN ACADEMY OF NEUROLOGY
QUALIFICATIONS AND GUIDELINES FOR THE
PHYSICIAN EXPERT WITNESS
PREAMBLE
Neurologists may be called upon to serve as expert witnesses in various legal proceedings.
In this role, they can serve the public interest by providing testimony that is competent,
objective, and respectful of law and the legal process. The American Academy of Neurology,
as the largest professional society of neurologists in the United States, has undertaken to
formulate a Code of Professional Conduct for its members. The purpose of the following
provisions is to inform members of the Academy as to what constitutes ethical expert
testimony. A neurologist who violates these provisions is subject to disciplinary action under
the By-Laws and Disciplinary Action Policy of the Academy if the violation occurs while the
neurologist is a member of the Academy…
Elements of medical expert testimony…
Qualifications of a medical expert…
Conduct of the medical expert…
AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW
ETHICAL GUIDELINES FOR THE PRACTICE OF
FORENSIC PSYCHIATRY
I. Preamble
II. Confidentiality
III. Consent
IV.Honesty and Striving for Objectivity
V. Qualifications
VI.Procedures for Handling Complaints of Unethical Conduct
.
APA Document Reference No. 960007
Peer Review of Expert Testimony
RESOURCE DOCUMENT
Approved by the Board of Trustees, December 1996
"The findings, opinions, and conclusions of this report do not necessarily represent the views of the officers, trustees, or all members of the American Psychiatric Association. Views expressed are those of the authors." -- APA Operations Manual.
Developed by the Council on Psychiatry and Law’s Task Force on Peer Review of Expert Testimony and approved by the Board of Trustees in December 1996, this document does not represent official APA policy but rather was approved as a resource document.
The American legal system seeks justice through the adversarial process. The adversarial process, by its
very nature, tends to highly polarize ideas. At times psychiatrists who testify as expert witnesses in court or
similar settings have been perceived in the popular, legal and medical literature as either deficient in
knowledge or to have knowingly behaved in an unethical manner to advance the cause of the party who
hired them.(1-6) Sometimes these perceptions are not accurate. Other times they are true. This paper
attempts to outline the problem and discuss possible solutions.
. . .
The American Psychiatric Association is a national medical specialty society, founded in 1844, whose 40,000 physician members specialize in the diagnosis and treatment of mental and emotional illnesses and substance use disorders.
The American Psychiatric Association
1400 K Street NW · Washington, D.C. 20005
LIABILITY FOR PROVIDING
EXPERT WITNESS TESTIMONY
Professional Organizations
Are regulating members; sanctions may be
Reportable to NPDB
Discoverable in litigation
Are creating guidelines for members to give expert
testimony
May have certification program for members providing
expert testimony
10 TO 20 MINUTES = 116 SECONDS??
“The legal fallout may result in any or all of the following:
Civil contempt of court
Criminal perjury prosecution by the District Attorney
Civil suits for causing this mistrial by any/all of the attorneys involved
Actions against his license from the Department of Health
Racketeering suits for conspiring with insurance companies to
commit insurance fraud; and
Investigation by the Attorney General into the issue of insurance
fraud perpetuated by the insurance industry”
www.newyorkpersonalinjuryattorneyblog.com/2013/07/judge-rips-doc-for-huge-lie-perjury-prosecution-possible-victims-may-number-in-thousands.html
PLUS
EXPERT WITNESS LIABILITY –
IN A NUTSHELL
Witness immunity cannot be relied upon as an absolute
bar to liability for testimony
Criminal prosecution, while rare, is possible, and may
involve more than perjury charges
Providing expert testimony is generally considered the
practice of medicine, subjecting the witness to oversight
by the state licensing board – such as
Discipline for unprofessional conduct
Determination of when state license is required
Determination of standards for expert testimony
Professional associations are engaging in peer review of
and discipline for expert testimony
EXPERT WITNESS LIABILITY –
RISK MANAGEMENT ADVICE
Understand and comply with the expectations of state licensing
boards (including state where testimony is to be provided), such as
standards for expert testimony, licensure requirements for
out-of-state witnesses, etc.
Understand the expectations of state medical associations, such as
guidelines for testimony, peer review, etc.
Understand the expectations of specialty societies, such as
guidelines for testimony, peer review, etc.
Prepare adequately for the case, and address weaknesses in the
case with the retaining attorney
