Docking Doctors? AMA eyes discipline for physicians giving 'false' testimonyAuthor(s): MICHAEL HIGGINSSource: ABA Journal, Vol. 84, No. 9 (SEPTEMBER 1998), p. 20Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840411 .

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NEWS

Docking Doctors? AMA eyes discipline for physicians giving 'false' testimony BY MICHAEL HIGGINS

There's good science and there's "junk" science, and courts have long discussed how to deal with the two.

Now the American Medical As sociation is studying a plan that would take doctors who testify to junk science and toss them out with the trash. The ama says it wants to crack down on doctors who mis lead juries by giving "false" testi

mony, whether intentionally or

through incompetence. "This is a very important is

sue to the physicians," says Dr. Donald Palmisano of the ama's board of trustees. "When someone gives false testimony, it dishonors the profession. We in the profession should not just stand on the side lines."

But plaintiffs lawyers see the plan as an attempt to stack the deck in favor of de fendants, espe cially in mei cal malpracti| suits. "Itcer ly would have a chilling effect! on those [doc tors] who are willing to

testify against their colleagues," says Robert Peck, director of legal affairs at the American Trial Law yers Association.

The ama's disciplinary propos al follows the group's resolution last year that doctors who testify as

experts are practicing medicine and are subject to peer review. The ama is scheduled to meet this December to lay out exactly how a discipline system would work. It will then be up to state medical societies wheth er to adopt the plan.

The leading ama plan is based on a model program begun in 1995 in Tampa under which complaints about false testimony go to the Florida Medical Association. The state board of medicine could sus

pend or revoke the doctor's license. The Tampa program doesn't

define false testimony beyond its commonsense meaning?"something that is not accurate or correct," says Dr. Dennis Agliano, one of the pro

k gram's originators. I So far, the program has con I eluded only one false testimony

case, which ended in a settlement with the doctor signing a state

ment agreeing to follow principles of medical ethics.

Agliano insists the disciplin k ary system isn't one-sided. "If

I an expert lies to protect f the [defendant] doctor,

/"%y he's as vulnerable as ^ the doctor who lies

to help the plain tiff."

But Peck of atla says the ama plan plainly fa vors defendants. Plaintiffs are far more likely to

:0

DR. DBMS AGUANO Credibility issue affects patient care.

challenge an established product or medical procedure, he says. As a re sult, they often must rely on newer, less-accepted science. Peck cites the response of tobacco company offi cials to research that first linked smoking to cancer. "For the longest time, they were able to portray the science that made that linkage... as

speculation, and not real science." Critics also say it's up to

judges, not doctors, to decide what testimony belongs in court. As long as evidentiary standards are met there's no reason to threaten the witness with extra penalties, says Jeff Lewin, a law professor at

Widener University in Wilmington, Del. "I would hate to see a sys tem that penalized people for their honestly felt beliefs because ... other experts disagreed," he says.

Examples Abound In a report in June, ama Presi

dent-elect Thomas Reardon of Bor ing, Ore., acknowledged that evi dence rules can "help sift out ex

pert testimony that is unreli able." Reardon cited a recent article stating that doctors testifying in child abuse cases "misquoted stan dard journals and texts, made false statements, and deliberate ly omitted important facts."

Palmisano, who is also a law yer, says the ama isn't taking aim at physicians whose opinion might be shared by only 20 percent of their peers. "What I'm talking about is when there's not another credible person" who concurs.

But Peck and Lewin say disci plining doctors for what they say in court may be unlawful. Peck sees it as restraint of trade, since the ama would be "essentially closing out the market for experts on these [controversial] subjects." Both con tend that if public hospitals take action against doctors based oh their opinions, the doctors could have a First Amendment claim.

But, says Agliano, testifying isn't just an academic exercis?. "If you're testifying [falsely], you must practice that way, and if you prac tice that way, you're going to harm patients."

ABAJ/WADE OSBORNE

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