Expert Witnesses Disciplined By Their Own Ranks

My client's interviewee was a family practice doctor licensed by the Division to practice medicine in the State of Alaska. According to the Division, the interviewee's practice had been limited to an isolated town until one day when the interviewee abruptly left his practice. Again, according to the Division, while in the isolated town, he had self-medicated for depression and had come to the attention of the Drug Enforcement Administration for over prescription of narcotic drugs. The Division was concerned with the interviewee's continued ability to practice medicine and requested a forensic evaluation.

My client did a forensic evaluation, including a review of medical and other records, and an in-person interview. He diagnosed a bipolar disorder with a question to rule out major depression, but concluded that the interviewee could practice medicine, although preferably in a less isolated setting and with some monitoring. The interviewee had voluntarily undergone definitive psychiatric treatment in the intervening time between capturing the attention of the Division and the interview. A hearing officer agreed with my client's assessment, but concluded that the suggested monitoring was unnecessary.

My client went on with his life. A member of the American Psychiatric Association (APA), he was a long-standing member of the local APA district ethics committee. To say he was surprised is perhaps an understatement of his reaction to a complaint to that same ethics committee by the interviewee, who alleged that the forensic evaluation was contrary to the APA ethical guidelines. In particular, he complained that the diagnosis should have been major depression and not bipolar disorder, and that major depression should have been ruled out. An “investigation committee” was formed and an inquiry begun.

Like any forensic psychiatrist, my client does not need to belong to the American Psychiatric Association. He is able to practice medicine and psychiatry and, for that matter, forensic psychiatry in Alaska without membership. His participation in the organization is entirely voluntary. Indeed, the ethical guidelines for expert evaluations and opinions, while serving as some evidence of the proper standards to be used for forensic evaluation, are strictly voluntary and a nonmember cannot be disciplined for failure to adhere to the standards.

However, membership in the American Psychiatric Association is prestigious and occupies a prominent place in a resume, as does appointment to various posts within the organization. Certainly an adverse disciplinary action carries negative implications, impacts future forensic assignments and becomes an unflattering cross-examination weapon in future depositions and trials.

Case Law on Discipline By Voluntary Organizations

Discipline carried out by a voluntary professional association has been explored in Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001). There, Dr. Austin, himself a neurological surgeon, had testified to his opinion that another member of the association had been negligent in performing a particularly complex neurological surgery. Doctor Austin's opinion did not persuade the jury, which found no negligence. Nonetheless, the acquitted surgeon filed a complaint with the association in which he alleged that Dr. Austin had violated its internal ethical code. The American Association of Neurological Surgeons was of significant enough prestige that Dr. Austin listed his membership prominently on his resume. After a hearing, the association suspended Dr. Austin. He then brought suit against the association, that suit was dismissed, and, ultimately, the U.S. Court of Appeals for the 7th Circuit upheld the dismissal of the suit.

There were several grounds for upholding dismissal, but the central ground, although somewhat dependant on Illinois law, was that discipline by a voluntary organization does not involve a sufficiently important economic interest to afford anything in excess of procedural due process to the affected member. The court found there was procedural due process because Dr. Austin received notice, appeared before the panel with counsel and took part in the evidentiary process.

Although not necessary to a finding of procedural due process, the Seventh Circuit took pains, however, to discuss the findings of the panel. According to that discussion, Dr. Austin apparently had opined that “a majority of neurosurgeons” would agree that the method used in the surgery he was asked to testify about was incorrect and that the injury suffered by the patient had to have resulted from the surgeon's negligence as there was no other possible cause. In arriving at these opinions, Dr. Austin had relied on two scholarly sources. The findings of the panel about the reliability of these sources of support are not mentioned in either the Seventh Circuit opinion nor in the District Court opinion (120 F. Supp. 2nd 1151). However, the Seventh Circuit on its own initiative found neither publication supported Dr. Austin's hypothesis: “Cloward [the first article] was making a general statement of reassurance about the avoidability of serious complications of his pet operation, not anything specifically to do with the risk of permanent damage … Watkins [the second article] never suggested that all … injuries … could be prevented by being gentle.” Id. at 970. Surprisingly, the Seventh Circuit then began research on its own: “[T]here is an abundance of up-to-date relevant literature easily retrievable from the World Wide Web. There we discover in a cursory search that [the damage from the surgery] … is a known though fortunately rare complication of … [the surgery].” [Citation to Web address omitted.] Id. at 971.

This judicial research into neurology is surprising, however, because the Seventh Circuit specifically found that “The American Association of Neurological Surgeons knows a great deal more about [the operation and Dr. Austin's criticism] than any judge.” Id. at 973. Despite that rationale, the Seventh Circuit obviously still felt the association's findings needed some help. However, no request for reconsideration was made, and certiorari was denied by the U.S. Supreme Court. 534 U.S. 1078 (2002).

A final portion of the Seventh Circuit decision held that Dr. Austin could not have proven damages, in part because the association's findings were true. So, the court found, had Austin proved a wrong, he would have had to partition the injury resulting from it between the part due to the revelation of truthful information and the part due to the disciplinary suspension itself. Id. at 974. Of course, since the court found its review of voluntary organizational discipline to be limited to procedural due process, it is difficult to understand how the truth or falsity of the organization's findings should ever come to the court's attention, and consequently, how damages are ever to be found, let alone apportioned.

In next month's issue, we will explore the consequences professional organization censure can have on an expert witness and on the legal process.

Increasingly, expert witnesses' opinions are subject to the scrutiny of the professional organizations to which they belong. This scrutiny can act as a check on their proffered expert testimony. The requirements of admissibility of expert opinion at trial have long been subject to the requirements of Daubert v. Merrill Dow Pharmaceutical Inc. , 509 U.S. 579 (1993), and after admission, the opinions are often second-guessed by an unhappy client in a subsequent lawsuit, as in LLMD of Michigan v. Jackson-Cross Co. , 740 A.2d 186 (Pa. 1999). Now we're finding that the further review of these same opinions by the expert's own specialty professional organization is being used increasingly as a new strategy of attack by the expert's unhappy opponents.

Review By the American Psychiatric Association's Ethics Panel

A recent client of mine is a forensic psychiatrist, a Diplomat of the American Board of Psychiatry and Neurology and a Diplomat of the American Board of Forensic Medicine. His practice is almost entirely limited to forensic psychiatric evaluation, and he did work for the Social Security Board, the Federal Aviation Administration, and, in the case we will discuss here, the State Division of Occupational Licensing (the Division).

My client's interviewee was a family practice doctor licensed by the Division to practice medicine in the State of Alaska. According to the Division, the interviewee's practice had been limited to an isolated town until one day when the interviewee abruptly left his practice. Again, according to the Division, while in the isolated town, he had self-medicated for depression and had come to the attention of the Drug Enforcement Administration for over prescription of narcotic drugs. The Division was concerned with the interviewee's continued ability to practice medicine and requested a forensic evaluation.

My client did a forensic evaluation, including a review of medical and other records, and an in-person interview. He diagnosed a bipolar disorder with a question to rule out major depression, but concluded that the interviewee could practice medicine, although preferably in a less isolated setting and with some monitoring. The interviewee had voluntarily undergone definitive psychiatric treatment in the intervening time between capturing the attention of the Division and the interview. A hearing officer agreed with my client's assessment, but concluded that the suggested monitoring was unnecessary.

My client went on with his life. A member of the American Psychiatric Association (APA), he was a long-standing member of the local APA district ethics committee. To say he was surprised is perhaps an understatement of his reaction to a complaint to that same ethics committee by the interviewee, who alleged that the forensic evaluation was contrary to the APA ethical guidelines. In particular, he complained that the diagnosis should have been major depression and not bipolar disorder, and that major depression should have been ruled out. An “investigation committee” was formed and an inquiry begun.

Like any forensic psychiatrist, my client does not need to belong to the American Psychiatric Association. He is able to practice medicine and psychiatry and, for that matter, forensic psychiatry in Alaska without membership. His participation in the organization is entirely voluntary. Indeed, the ethical guidelines for expert evaluations and opinions, while serving as some evidence of the proper standards to be used for forensic evaluation, are strictly voluntary and a nonmember cannot be disciplined for failure to adhere to the standards.

However, membership in the American Psychiatric Association is prestigious and occupies a prominent place in a resume, as does appointment to various posts within the organization. Certainly an adverse disciplinary action carries negative implications, impacts future forensic assignments and becomes an unflattering cross-examination weapon in future depositions and trials.

Case Law on Discipline By Voluntary Organizations

Discipline carried out by a voluntary professional association has been explored in Austin v. American Association of Neurological Surgeons , 253 F.3d 967 (7th Cir. 2001). There, Dr. Austin, himself a neurological surgeon, had testified to his opinion that another member of the association had been negligent in performing a particularly complex neurological surgery. Doctor Austin's opinion did not persuade the jury, which found no negligence. Nonetheless, the acquitted surgeon filed a complaint with the association in which he alleged that Dr. Austin had violated its internal ethical code. The American Association of Neurological Surgeons was of significant enough prestige that Dr. Austin listed his membership prominently on his resume. After a hearing, the association suspended Dr. Austin. He then brought suit against the association, that suit was dismissed, and, ultimately, the U.S. Court of Appeals for the 7th Circuit upheld the dismissal of the suit.

There were several grounds for upholding dismissal, but the central ground, although somewhat dependant on Illinois law, was that discipline by a voluntary organization does not involve a sufficiently important economic interest to afford anything in excess of procedural due process to the affected member. The court found there was procedural due process because Dr. Austin received notice, appeared before the panel with counsel and took part in the evidentiary process.

Although not necessary to a finding of procedural due process, the Seventh Circuit took pains, however, to discuss the findings of the panel. According to that discussion, Dr. Austin apparently had opined that “a majority of neurosurgeons” would agree that the method used in the surgery he was asked to testify about was incorrect and that the injury suffered by the patient had to have resulted from the surgeon's negligence as there was no other possible cause. In arriving at these opinions, Dr. Austin had relied on two scholarly sources. The findings of the panel about the reliability of these sources of support are not mentioned in either the Seventh Circuit opinion nor in the District Court opinion (120 F. Supp. 2nd 1151). However, the Seventh Circuit on its own initiative found neither publication supported Dr. Austin's hypothesis: “Cloward [the first article] was making a general statement of reassurance about the avoidability of serious complications of his pet operation, not anything specifically to do with the risk of permanent damage … Watkins [the second article] never suggested that all … injuries … could be prevented by being gentle.” Id. at 970. Surprisingly, the Seventh Circuit then began research on its own: “[T]here is an abundance of up-to-date relevant literature easily retrievable from the World Wide Web. There we discover in a cursory search that [the damage from the surgery] … is a known though fortunately rare complication of … [the surgery].” [Citation to Web address omitted.] Id. at 971.

This judicial research into neurology is surprising, however, because the Seventh Circuit specifically found that “The American Association of Neurological Surgeons knows a great deal more about [the operation and Dr. Austin's criticism] than any judge.” Id. at 973. Despite that rationale, the Seventh Circuit obviously still felt the association's findings needed some help. However, no request for reconsideration was made, and certiorari was denied by the U.S. Supreme Court. 534 U.S. 1078 (2002).

A final portion of the Seventh Circuit decision held that Dr. Austin could not have proven damages, in part because the association's findings were true. So, the court found, had Austin proved a wrong, he would have had to partition the injury resulting from it between the part due to the revelation of truthful information and the part due to the disciplinary suspension itself. Id. at 974. Of course, since the court found its review of voluntary organizational discipline to be limited to procedural due process, it is difficult to understand how the truth or falsity of the organization's findings should ever come to the court's attention, and consequently, how damages are ever to be found, let alone apportioned.

In next month's issue, we will explore the consequences professional organization censure can have on an expert witness and on the legal process.