August 2020 Edition. Volume XX

In addition to providing information regarding “standard’ or “accepted” forms of therapy physicians are occasionally called upon to provide expert testimony in the performing of an Independent Medical Examination (IME), testifying in a deposition or court proceeding or providing “expert opinions” in publications.

There exists a legitimate concern that the information presented is not always of good quality and is not infrequently biased.

There do not exist, at the present time, any hard standards regarding who is qualified to provide an independent medical evaluation or provide an expert opinion other than a medical license.  Due to this shortcoming it is not infrequent that the physician being asked to perform a IME, or other task, is simply not qualified by training, experience, or credentialing to serve in this capacity.  Many physicians earn their livelihood as “hacks” for third parties.  As reliable “nay sayers” they are typically well known to the professional community at-large but continue unimpeded, infrequently challenged, and almost never disciplined.  Many managed care providers see their use as a cost-effective means of decreasing their cost of business and continue to support this sad farce.  Often IMEs do not even reflect the basics of history review, history taking, physical and neurologic examination, review of x-rays and imaging studies.  IMEs that do not follow a agreed-upon protocol should be considered to be invalid on this basis alone.  These practices lacking of ethic or integrity will continue only as long as the community continues to tolerate such behavior.

The major liability of depositions is that there isn’t a referee or judge present to guide the process.  It is not infrequently the case that depositions proceed for many hours reviewing inane material not germane to the subject at hand.  This consistently represents not only a waste of natural resource (trees), time, talent and money but also guarantees that anyone actually attempting to read such a document will probably have nodded-off long before finishing it (maybe that is the intended strategy)..  Depositions require the presence of more than just transcribers and videographers. They would certainly benefit from having a representative of the court present to maintain some modicum of restraint and efficiency but this is clearly not a practical suggestion.  A better answer would be to place a one hour time limit (absolutely not more than 1½ hours) on any deposition initially.  This would not preclude unlimited additional hours scheduled at other times.  The Burton Experience has been that when a deposition is limited to an hour it gets done in an hour and all of the pertinent concerns are invariably addressed during this period of time.

In an adversarial system of law each side produces its own witnesses and information.  It is  the responsibility of the court to judge, and rule on, this. More frequently the courts are becoming involved in issues relating to technology assessment. Today’s “high-tech” world has not been matched with high-tech judges and juries. Judges and juries have been given the unenviable task of becoming a modern version of the Greek philosopher Diogenes (circa 300 BC) searching for a “honest man.”  They are given the challenge of sorting out a myriad of information being provided by persuasive lawyers and “experts.”  Sometimes the issues involve whether a patient should have received, or should be eligible for, advanced technologies, as well as whether the court should order reimbursement for expensive treatment modalities.  The court is typically dependent, in these matters, on the information provided by a medical expert.  Should there not be a qualified medical “expert” appointed by the court  to be present to make inquiries and thus serve as a check on poor medical testimony as well as to determine, in advance, any potential conflicts of interest?

The State of Minnesota Legislature in its 1999 session implemented a well-intentioned review system designed to address treatment disputes with managed care providers.  Due to take effect in April, 2000 the patient can go to an “independent medical expert” to assist in resolving the coverage issue.  Herein lies the basic challenge of the concept of an “expert.”  How about some standards first?   Why not address the following issues in these standards:

What is the expert’s training?
What is the expert’s experience?
What are the expert’s formal credentials?
What are the expert’s potential, or real, conflicts of interest?
Who else considers this person to be an expert?
Who can be the unbiased reviewer able to determine the legitimacy of this

The American Academy of Orthopaedic Surgeons and the American Association of Neurological Surgeons have published Expert Witness Guidelines the following have been suggested by Edward Benzel as being the desirable characteristics for a legitimate expert witness

1.  Maturity- an expert witness should harbor enough maturity by virtue of his or her age and knowledge of the subject at hand to provide meaningful and objective commentary and opinion.
2.  Experience- the expert witness should be experienced in the field to be specifically addressed by the litigation at hand.  Both the lay public and physicians desire learned opinions that can be “delivered” only by experts in the specific discipline addressed by the lawsuit or claim.
3.  The expert witness should be well known in his or her specific discipline (that is directly related to the litigation at hand) regarding expertise, honesty, objectivity and style.  Regarding the latter point, most people (physicians and the lay public alike) desire calm, collected, methodical responses to questions.

Benzel CB:Medical expert witness, SpineLine (of the North American Spine Society), March/ April 2001, pp. 37-38.

As of the year 2002 only the Medical-Legal Committee of the American Board of Spine Surgery has a program-in-place to provide a medical opinion as to the legitimacy of the credentials of a proposed “expert” witness.

Until all other professional organizations are also willing to assist in the process of determining “expertise”, particularly a medical expert, all such endeavors will continue to be shrouded in shadow.

It would certainly be in the public interest for some reputable organization such as Marquis, publisher of the Who’s Who series, to publish a companion publication (i.e. “What’s What”) also listing, for public review, all of the real and potential conflicts of interest existing for “experts” providing consultative or expert testimony services.  This publication would probably need to be interactive so as to maintain some currency.  The challenge inherent in the practical application of the “sunshine principle” are the concerns regarding First Amendment “Rights” and security issues pertaining to those persons being identified.  In 1998 the United States Legislature enacted a Ethics in Government Act.  This has been a step in the right direction but is clearly going to take some considered effort to come up with a reasonable balance between disclosure and privacy.

Burton Report is an independent and non-commercial internet journal which was first published on January 1, 2000 and is dedicated to the principle that health care and the health care process MUST reflect truth and integrity as well as the best interests of the patient.

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