Cohen
Jones
CHARLESTON – Most West Virginia physician specialists question expert testimony if it is outside a doctor's specialty or is tainted by financial incentives, according to a new survey.
The president of the West Virginia Trial Lawyers Association, however, disputed the results of the survey, calling it "more propaganda."
The survey was conducted by the Center for Survey Research at the University of Virginia and released Monday by West Virginia Citizens Against Lawsuit Abuse.
The results showed that more than 60 percent of the respondents believe lawyers choose their medical expert witnesses based on the physician's willingness to support the lawyer's case. It also showed that 72 percent of the physician specialists in the survey personally have seen or heard statements by a medical expert witness in a courtroom they viewed as inaccurate or based on questionable science.
"Unfortunately West Virginia has been a national laughingstock when it comes to credible medical experts in the courtroom," WV CALA Executive Director Steve Cohen said. "A lawsuit mill paid local radiologist Ray Harron of Bridgeport close to $10 million to diagnose alleged illnesses on thousands of 'patients' never examined in person.
"In other cases, trial 'experts' are hired based on their willingness to claim a certain scientific or medical theory."
A surgeon called said the survey is a good place to start in improving standards for medical expert testimony.
"Misleading, inaccurate, certainly fraudulent testimony from 'medical experts' speaking outside their field of expertise or testifying for a financial incentive have no place in West Virginia courts, or any court for that matter," said Gregory M. Saracco, a former president of the Ohio County Medical Society. "Such testimony would bring a miscarriage of justice and erode the credibility of our profession. Juries must have the truth from reliable experts if our courts are to be fair."
Saracco said he and other state medical officials think strong expert witness rules, such as those in federal guidelines, can help ensure fairness for all parties in the courts.
"Junk science cannot be allowed in our courts," he said. "There must be no tolerance for testimony that is pure science fiction, which lead to frivolous lawsuits and an outright abuse of the court system."
Saracco said reform is especially necessary in cases involving medical testimony.
"Judges and juries must grasp complex issues from a doctor's diagnosis," he explained. "Too often a personal injury lawyer will present a so-called expert to try to put the appearance of a stamp of authority on what may be a factually baseless case.
"It not only damages the integrity of law, it undermines patient confidence in the medical profession."
Cohen said CALA wants judges and prosecutors to be able to police the use of scientific experts.
"Judges and juries must be able to distinguish between a legitimately disputed diagnosis and evidence 'manufactured for money,'" as a federal judge found in Harron's racket," Cohen said.
The survey said 64 percent of those surveyed rated the quality of medical expert witness testimony as "poor" or "only fair." Other findings include:
* 80 percent of physicians believe medical expert testimony has a negative impact on the integrity of their profession.
* 88 percent of physicians say that physicians who give expert witness testimony should be held to the same standards and sanctioning as they would in their practice or hospital setting.
* 82 percent of physicians feel that a medical expert witness found to being giving fraudulent testimony should be sanctioned both in the state where they testified and the state where they practice.
* 96 percent of physicians want a code of ethics to govern physician conduct in providing expert witness testimony.
* 94 percent of physicians feel it is unethical for an expert witness to receive payment contingent upon the outcome of their testimony.
The president of the WVTLA has concerns about the survey.
"I'm sure these doctors aren't even from West Virginia," Jeff Jones said Thursday.
Jones said the 2003 Medical Malpractice bill signed into law takes care of a lot of the subject touched on in the survey.
"Experts have to have expertise," he said. "It's just not allowed.
"And you can't have contingency experts. I abhor that, anyway. There are State Bar rules are against that."
The WVTLA also noted tat West Virginia even went a step farther and requires that expert witnesses actually have to spend at least 60 percent of their professional time in either clinical practice or teaching in his/her medical field or specialty.
It also noted that if a lawyer enters into contingency fee agreements with experts in exchange for testimony beneficial to a case, he or she can face sanctions including being disbarred.
Cohen, meanwhile, defends the results of the survey.
"It was conducted by the highly regarded the University of Virginia's Center for Survey Research," He said. "We stand by the survey."
He also countered Jones' comments about expert witnesses and contingency arrangements.
"Why then did personal injury lawyers submit medical evidence to a West Virginia court from a doctor that does not exist?" he asked. "Why, then, are personal injury lawyers paying a West Virginia radiologist close to $10 million to perform mass screenings of potential asbestos victims, many of whom were allegedly never seen by the doctor?"
