Moving Ahead With Tort Reform: A Plea for “Expert” Experts

In his September 9, 2009 Health Care address to a joint session of Congress, President Barack Obama said: “I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.” He then promised to authorize the Secretary of Health and Human Services, Kathleen Sebelius, to “move forward” by providing Federal assistance for “demonstration projects” in individual states to test various tort reform solutions.¹

Unhappily for physicians, little movement has been seen on this issue. The fact that Secretary Sebelius spent 8 years as Director of the Kansas Trial Lawyers Association may or may not have influenced this oversight, but physicians cannot help but be disappointed that only 416 of the 363,086 words in the Affordable Health Care for America Act (HR 3962)² address “medical liability alternatives.” To add insult to injury, many of the 416 words in Section 2531 focus on ensuring that a State law “does not limit attorneys’ fees or impose caps on damages.”

However, the President did promise to move forward on tort reform and physicians who have long gotten used to losing in Congress to the might of the American Trial Lawyers Association should seriously consider tort reform solutions that are outside of caps on damages. In particular, we believe legislation to standardize expert witness qualifications would be a welcome step in the right direction.

In the Federal Court system, the Federal Rules of Evidence 702 and 703³ specifically exclude the admissibility of an expert witness in a civil case if the expert’s testimony is not scientifically reliable or does not “fit” the facts of the case. This so-called Daubert rule stems from a series of 4 United States Supreme Court opinions including, among others, Daubert v Merrell Dow Pharmaceuticals, Inc.⁴

Amazingly, this is not the standard in the civil courts of 47 of the 50 states in the United States (the exceptions being Arizona, Georgia, and Virginia). Rather, in almost every state, an expert witness need only be able to pass cross-examination from the opposing attorney to be able to admit testimony before a jury. In practice, this means that the so-called expert need only have received an MD or DO degree to be able to speak to a jury on any topic in medicine. For example, a pediatrician can travel the country testifying as an expert about the standards of care in obstetrical cases even though that doctor would never qualify for a license to deliver a baby even in the most routine of settings in any state. How could an expert not be allowed to practice in the field about which he or she is testifying in any state? Amazing but true!

To correct this gross miscarriage of justice, states such as Georgia have enacted legislation that mandates that, in a medical malpractice action, an expert must (in addition to other requirements) meet the following criteria:

• Active practice of such area of specialty in 3 of the past 5 years as the allegedly negligent defendant or

• Teaching of his or her area of specialty in 3 of the past 5 years as the allegedly negligent defendant.⁵

Contrary to popular belief, the vast majority of physicians do not want to limit their patient’s access to the courts. What they want—what we want—is an equitable, predictable, and impartial medicolegal system that allows each case to be judged on its merits. A medicolegal system is needed that steers us away from courtroom theatrics and toward a serious and rational deliberation of the issues at hand. Whether a strategy of requiring experts to actually be experts in the field in which they are testifying will decrease the number of “frivolous” law suits or significantly lower malpractice costs remains to be seen. However, for physicians who are trained to seek answers based on sound scientific evidence, this form of short-term tort reform might go a long way toward restoring our confidence in the medicolegal system. It may also pave the way for more comprehensive and balanced tort reform in the years to come, thereby allowing both the medical and legal professions to focus our attention back to where it should be: on patient safety.