A 28-year-old Chicago woman delivered a healthy baby in June 1998. The delivering physician did not perform an episiotomy. A laceration into the rectum occurred, which was recognized and repaired in the standard fashion.
     The woman subsequently filed a lawsuit against her obstetrician. An OB/GYN expert testified it was negligent to fail to perform an episiotomy and that this negligence caused scarring and dyspareunia.
     The testimony flies directly in the face of well-documented evidence in a number of OB/GYN journal articles that the performance of episiotomy leads to more such lacerations, not fewer.
     A jury awarded the woman more than $500,000.

A 26-year-old female tested positive for Group B Streptococcus in her 37th week of pregnancy, but was delivered by another obstetrician who did not attempt to retrieve the positive test result. Although the infant was unharmed, the mother developed Group B Strep meningitis and now suffers permanent epilepsy.
     An infectious disease expert witness testified that the infection resulted from GBS colonizing the mother's normal low back skin injected through an accidental thecal puncture during an attempted administration of epidural anesthesia and that high-dose Penicillin prior to delivery would not have prevented the mother's infection.
     Based on the testimony, the jury found the defendants negligent, but denied damages for lack of causation. The world's literature reveals no known cases of GBS colonization of normal back skin.


What can be made of these two cases? It is evident that there exists a problem with dishonest and unprofessional testimony, both for the plaintiff and the defense.

Additionally, there has been a growing concern over "junk science" in the courtroom. By creating fanciful and unscientific theories, experts have often misled juries into rendering verdicts that are unjust. In many instances, the welfare of patients has been compromised as a result.

The patients, however, are not the only ones who lose. The domino effect of unethical testimony upon the medical profession can hardly be overstated. When physician experts testify dishonestly in court, the credibility of the medical profession suffers; malpractice cases without merit proliferate while some with merit fail; malpractice insurance premiums skyrocket; and young physicians are driven away from high-risk specialties.

What policies are in place to police expert witnesses? Few, to date, have been effective. Since 1997, it has been the position of the American Medical Association that expert medical testimony by a physician constitutes the practice of medicine and, therefore, should be subject to peer review.

Despite this, only a handful of cases have been peer reviewed and few physicians disciplined. The reasons for this are various. A good many physicians have been so traumatized by the ordeal of malpractice that they want only to put it behind them. Others are fearful that filing a grievance against an expert could result in filing of a lawsuit by the expert against them.

There is a need to shine a bright light on the problem of unethical testimony in general and by physicians in particular. Patients cannot be expected to have confidence in a physician's ability to care for them with honesty and integrity when they see some behaving as "hired guns." For physicians to continue as respected members of a noble profession, there must be a system of ethical accountability in medical jurisprudence equal to that which exists in clinical medical practice.

A group of concerned physicians, attorneys and others formed the Coalition and Center for Ethical Medical Testimony. It has as its goal the establishment of ethical standards both for testifying experts and the attorneys who hire them. The CCEMT's positions seek to be genuinely fair and balanced--between medicine and law, between plaintiff and defendant.

CCEMT's proposals requiring experts adhere to an ethical accountability standard will not impair justice for plaintiffs with legitimate claims and will not protect experts who abuse their position of trust on behalf of defendants. When all sides are required to meet reasonable standards for ethicality and truth telling, the system is empowered to do what it is intended to do: assure justice for all.

The goal of testimony reform has driven CCEMT's actions. Particularly bold is its commitment to publishing examples of unethical testimony, complete with names, on its Web site. To ensure fairness, it has offered the offending testifiers the opportunity to justify their courtroom statements. Almost without exception, none have done that. Instead, the CCEMT receives threatening letters, but publishes anyway, believing that exposing dishonesty to peers is a powerful disincentive.

If you believe expert witnesses must be held to an ethical standard, join us as a member of CCEMT. Visit www.ccemt.org.

David M. Priver, MD, is vice president of the Coalition and Center for Ethical Medical Testimony. He practices in San Diego and can be reached at dpriver@aol.com.