Understanding Rule 16 of the Academy’s Code of Ethics
In recent months, the Academy’s Ethics Committee has seen a sharp upswing in the number of challenges and inquiries regarding potentially inappropriate expert witness testimony. Until this year, the Code of Ethics had been silent on this issue, and the Ethics Committee had no authority to investigate such cases. In the absence of a Rule of Ethics addressing this matter, the challenge or inquiry was returned to the submitter noting that the responsibility to dispel false, deceptive or misleading testimony rested with the attorney conducting the cross examination.
In light of the 7th U.S. Circuit Court of Appeals decision in Donald C. Austin, MD v. American Assn. of Neurological Surgeons, the Ethics Committee concluded there is legal precedent for a Rule of Ethics defining appropriate expert witness testimony. The Academy Board of Trustees agreed, and in June 2003 approved a proposed Rule to be
voted on by the general membership. The Rule was approved by the membership December 2003, and went into effect January 1, 2004.
The Rule provides:
16. Expert Testimony. Expert testimony should be provided in an objective manner using medical knowledge to form expert medical opinions. Non-medical factors (such as solicitation of business from attorneys, competition with other physicians, and personal bias unrelated to professional expertise) should not bias testimony. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation. False, deceptive or misleading expert testimony is unethical.
What is Expert Witness Testimony?
The expert witness plays an essential role in determining medical negligence, and courts depend on expert witness testimony to establish the standards of care in questions of medical malpractice. Expert witness testimony serves to describe relevant standards of
care, helps to identify conformance with or any breaches in those standards, and whether or not a breach caused injury. In addition, an expert may be needed to testify about the current clinical status of a patient as part of the process of determining damages.
In civil litigation, expert witness testimony is much different from that of other witnesses. In legal proceedings involving allegations of medical negligence, “witnesses of fact” (those testifying because they have personal knowledge of the incident or people involved in the lawsuit) must restrict their testimony to the facts of the case at issue.
The expert witness is given greater latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case, and offer an opinion as to whether the evidence indicates a deviation from or conformance with the standard of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient’s injury. Without the expert’s explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts, juries would not have the technical expertise needed to distinguish malpractice (an adverse event caused by negligent care or “bad care”) from maloccurrence (an adverse event or “bad outcome”).
Standards of admissibility of expert witness testimony vary with state and federal rules of procedures and evidence. Although most state laws conform with the federal rules of procedure and evidence, some do not. The same testimony from a given expert witness, therefore, might be admissible in some state courts but not in federal court and vice versa. Ideally, expert witnesses should be unbiased conveyers of information: The pivotal factor in the medical tort process is the integrity of the expert witness. The testimony should be reliable, objective, and accurate and provide a truthful analysis of the
standard of care.
Limitations of the Rule & the Submission Process
Academy members should be aware that only testimony offered and/or depositions taken on or after January 1, 2004 will be actionable under Rule 16. The Ethics Committee will carefully screen new cases submitted for review, because the Academy does not have the resources to hold a hearing in every case, and is not the proper forum to adjudicate close calls. The Ethics Committee therefore will give priority to the most egregious cases.
Inquiries or challenges on this topic or others related to Rules of the Code of Ethics may be submitted by ophthalmologists (whether or not they are Fellows or Members of the Academy), other physicians, health care institutions, health care reimbursers, allied health professionals, patients and their families or organizations representing any of these.
Submissions may be sent to: Ethics Committee, American Academy of Ophthalmology, 655 Beach Street, San Francisco, CA, 94109. For the full text of the Code of Ethics, please use this link:
http://www.aao.org/aao/member/ethics/code_ethics.cfm. General questions may be posed to the Ethics Committee via email@example.com.