Neurologists issue new guidelines for expert witness testimony.

The American Academy of Neurology (AAN), the country's largest professional society of neurologists, has revised its guidelines for neurologists who testify as expert witnesses. Citing "growing numbers of complaints against neurologists regarding their conduct as expert witnesses" in an editorial that accompanied the guidelines' publication, the organization formally adopted them in January. (H.R. Beresford et al., The Neurologist as Expert Witness, 66 Neurology 1 (2006).)

The revised "Qualifications and Guidelines for the Physician Expert Witness" elaborate on the original version published in 1989 and add new provisions. As the old ones did, the revised guidelines require that expert witnesses have training and experience in the case's subject matter, including active practice, publication, or teaching in three of the last five years; give impartial testimony; and receive compensation that is not tied to the case's outcome.

The guidelines also call for demonstration of competence for experts who spend more than 20 percent of their professional time working on legal matters; confidentiality for patients, doctors, and others in the case; and avoidance of "the role of advocate for the party on whose behalf the expert is providing testimony."

A new section, noting that the purpose of medical expert testimony is to help a court understand medical evidence, outlines what that testimony encompasses, including medical evaluations of the plaintiff, descriptions of relevant standards of care, and any violation of those standards. The revised guidelines state that the expert "should appreciate the difference between a negligent violation of the relevant standard of care and an adverse event unrelated to substandard care."

The new guidelines also specify disciplinary action for violations. According to the AAN's disciplinary action policy, anyone can voice complaints about a member neurologist's testimony, including defendant doctors. If the AAN's grievance committee determines that the neurologist violated its witness guidelines, a hearing panel may take disciplinary action.

The AAN's general counsel, Murray Sagsveen, said via e-mail that during his nearly five-year tenure supporting the AAN's grievance committee, "all complaints submitted to fair hearing panels have involved expert witness testimony." Although the AAN says complaints against testifying neurologists are on the rise, Sagsveen declined to give any numbers, citing confidentiality of the grievance process.

A 2004 report in the organization's newspaper, Neurology Today, also gave no numbers, stating only that the grievance committee "received as many complaints about alleged improper expert witness testimony by neurologists in the last year as it did in the previous three years combined." (Gina Shaw, Dueling Neurologists: As Expert Witness Testimony Increases, So Do Complaints, Neurology Today, Aug. 2004, at 12.)

Lawyers who represent plaintiffs in medical negligence cases have criticized expert witness guidelines issued by medical societies, saying that they disproportionately affect plaintiff experts.

"There is an old saying that the law prohibits both the rich and the poor from sleeping under the bridges of Paris. The neurologists' association is made up entirely of potential defendants. It probably is fair to assume that no one who is a member of that organization will ever be a plaintiff [in a medical negligence case]; they will only be defendants," said Henry Krasnow, a Chicago lawyer who represented Donald Austin, a neurosurgeon sanctioned by the American Association of Neurological Surgeons (AANS) for testimony he gave in a case against another AANS member.

"When I was involved [in the Austin case], I reviewed every complaint that was ever brought by anyone that had to do with testimony, and all of them were complaints against witnesses for the plaintiff. I think it's naive to think that plaintiffs in general will know about these guidelines, whereas defendants in general will know about them because they're members of the organization. And it's naive to think that the organization will view plaintiffs' complaints with the same sympathy and empathy that they view defendants' complaints."

Fred Cohen, a Florida neurosurgeon and plaintiff lawyer, agreed that medical expert witness guidelines--although they ostensibly serve to ensure good testimony--can have a chilling effect on witnesses. In states where such testimony is considered the practice of medicine, experts may not be willing to testify in favor of plaintiffs and against their fellow doctors, he said.

But Michael Kaplen, a plaintiff attorney in New York City who handles brain injury cases, noted that plaintiffs can sometimes use the guidelines to their advantage.

"I like to get well-qualified experts, and when you do that, you don't have to worry about these guidelines," Kaplen said. "Defendants usually use a 'pro,' and these guidelines are very nice in showing the jury that these witnesses are just paid-for testimony. I've even cross-examined witnesses and tried to show the jury that they do nothing else besides testify."

But, he admitted, well-qualified experts are often reluctant to testify for plaintiffs. "I've certainly faced a problem in trying to find a neurosurgeon in a malpractice case to testify. It's next to impossible to find one, because they're afraid of [the AANS], which tries to get one to complain against another," Kaplen said.

The AANS sanctioned Austin and a colleague, Gary Lustgarten, who testified against two other neurosurgeons, for violating the organization's code of professional conduct in their testimony. Shortly after that sanction, the North Carolina Board of Medicine revoked Lustgarten's medical license.

That act still resonates with Cohen, a friend of Lustgarten.

"There is no reason why a doctor who gives expert testimony, no matter what he does or says, should have his license revoked," Cohen said.