Expert Witnesses Disciplined By Their Own Ranks

The trial court dismissed the entirety of Dr. Austin's opinion as unscientific and unreliable under Frye v. U.S., 293 F. 1013 (Cir. 1923), the test of admissibility in Pennsylvania. Without the expert testimony, the plaintiff could not maintain her medical malpractice case, which was then dismissed. Both the trial court and the appellate court noted Dr. Austin's discipline action by the American Association of Neurological Surgeons and the Seventh Circuit decision in Dr. Austin's case against the association. However, a majority of the Pennsylvania Superior Court found that Dr. Austin's opinion could not be dismissed on summary judgment as a matter of law because it was not “novel” scientific evidence and, consequently, not subject to the Frye test used in Pennsylvania.

The Opinion

The substance of his opinion, according to the written version, was as follows: “Appellee admitted that, during surgery … he entered the dural compartment where the affected nerves are located; there was no other demonstrable cause for appellant's nerve damage which manifested itself for the first time after surgery; therefore, appellee must have injured appellant's nerves during the surgery. Further, Dr. Austin opined that this type of complication would not occur absent negligence. This testimony does not implicate a Frye analysis.” Id. at 982. Since Frye was not implicated, the testimony was not stricken and the case reinstated.

What is significant here, however, is the court's treatment of Dr. Austin's prior discipline. The majority characterized the association's actions as a “sanction … for what is considered to be irresponsible expert testimony … ” but concluded: [W]e do not agree that the American Association of Neurological Surgeons (AANS) supports preclusion of his testimony under the Frye rule; rather it is relevant only to challenge Dr. Austin's credibility as an expert.” Id. at 983. Surely at trial, that “challenge” would be a cross-examination to which one could sell tickets.

However, more to the point, the dissent would have precluded the testimony entirely and would have upheld the trial court's dismissal: “If we permitted such irresponsible testimony [as offered by Dr. Austin], 'few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ills that flesh is heir to.' [citation omitted.] Even where Frye is inapplicable because no novel scientific evidence is proffered by the proposed expert, the trial court must still retain its broad discretion regarding the admissibility of evidence, and the trial court must be able to exclude opinions that are unreliable, speculative, and/or unsound and that fail to meet the same level of intellectual rigor characterized by other professionals in the relevant field of practice.” Id. at 990.

Whether one finds as did the association that Dr. Austin is a charlatan willing to trade his professional ethics for unworthy malpractice plaintiffs, or, as he claimed, a champion of patients seeking redress from a monolithic medical community, it is clear the disciplinary action of his association had dramatic effects. It is indeed hard to believe Dr. Austin had any further effectiveness as an expert witness.

Conclusion

In my client's case, clearly, the results of the APA's investigation panel could have an immense negative outcome. If found to have violated some ethical rule by making his diagnosis, his effectiveness as a forensic psychiatrist will be greatly diminished. Yet the investigation and the adjudication may be by the same panel. Although well meaning, the panel may be privy to contentions and testimony by the complainant of which my client may not be made aware and cannot, therefore, rebut. Simply put, local district ethics committees may not be prepared to offer the full range of procedural due process that the far-reaching consequences of their adjudication require. Access to the courts to correct even procedural irregularities takes time and is expensive. Further, of course, the actual finding of the committee is not likely to be open to court challenge. Whether a particular finding is supported by the evidence or whether the particular ethical standard is too vague to provide guidance in forming opinions is not open to review, at least under the Seventh Circuit opinion.

One final issue deserves mention. Physicians can be held accountable for examinations even where the examinee is neither a patient nor the party requesting the examination. For example, in Stanley v. McCarver, et al., 92 P.3d 849, (Ariz. 2004), the En Banc Supreme Court of Arizona allowed a plaintiff whose x-ray was read by the defendant to continue her case, although the defendant in fact was requested to read the x-ray for a limited purpose by the plaintiff's employer, who also paid for the examination. Certainly a finding that a forensic psychiatrist's opinion was “irresponsible,” to quote from Dr. Austin's case, could be the underpinning for a malpractice claim by an unhappy interviewee. While that is not possible in my client's case since he had quasi-judicial immunity (he had the same immunity as did the medical board and its hearing officer), that might not be the case for unhappy social security interviewees or pilots grounded by a negative evaluation.

The proliferation of professional organizational disciplinary actions seems at best unnecessary. After all, Dr. Austin did not convince a jury that the physician had committed malpractice. Judges do have a gatekeeper function that has been much litigated and has well-defined parameters. If an expert's opinion passes that gate, juries themselves seem less than mesmerized by less-than-convincing expert testimony. Indeed, they seem to do quite well in this task without the help (or possible hindrance) of the expert's professional organizations.

Fear of reprisals in any form can have a chilling effect on experts' willingness to give their opinions in these cases. This newest method of keeping such witnesses in check may limit junk testimony, but may also limit the expression of legitimately held opinions by medical experts. My client, I am sure, will maintain his independence in future forensic evaluations no matter what the outcome. Other experts may not be so inclined and, if so, we all may be the poorer.

In last month's issue we looked at a pending complaint made against a forensic psychologist to the ethics committee of his professional organization by an examinee unhappy with the psychologist's recommendation. We also explored case law in the Seventh Circuit that holds the decisions of professional organizations are not reviewable by the courts as long as the person being disciplined was given procedural due process. In this month's installment, we see how this state of affairs not only negatively impacts the professional prospects of the medical expert but also the free expression of valid medical opinions in the courtroom and other comparable settings.

The Consequences to the Expert's Practice

Perhaps the damages dismissed by the Seventh Circuit's decision can best be illustrated by a later case involving the same Dr. Austin as mentioned in Part One. In Hanley v. Pagnanelli , 830 A.2d 978 (Pa. Super. 2003), plaintiff suffered injury which became apparent a week following her back surgery by the defendant. Doctor Austin was again the expert for the plaintiff. He was again of the opinion that the only cause for the injury had to be the surgery performed by the defendant doctor.

The trial court dismissed the entirety of Dr. Austin's opinion as unscientific and unreliable under Frye v. U.S. , 293 F. 1013 (Cir. 1923), the test of admissibility in Pennsylvania. Without the expert testimony, the plaintiff could not maintain her medical malpractice case, which was then dismissed. Both the trial court and the appellate court noted Dr. Austin's discipline action by the American Association of Neurological Surgeons and the Seventh Circuit decision in Dr. Austin's case against the association. However, a majority of the Pennsylvania Superior Court found that Dr. Austin's opinion could not be dismissed on summary judgment as a matter of law because it was not “novel” scientific evidence and, consequently, not subject to the Frye test used in Pennsylvania.

The Opinion

The substance of his opinion, according to the written version, was as follows: “Appellee admitted that, during surgery … he entered the dural compartment where the affected nerves are located; there was no other demonstrable cause for appellant's nerve damage which manifested itself for the first time after surgery; therefore, appellee must have injured appellant's nerves during the surgery. Further, Dr. Austin opined that this type of complication would not occur absent negligence. This testimony does not implicate a Frye analysis.” Id. at 982. Since Frye was not implicated, the testimony was not stricken and the case reinstated.

What is significant here, however, is the court's treatment of Dr. Austin's prior discipline. The majority characterized the association's actions as a “sanction … for what is considered to be irresponsible expert testimony … ” but concluded: [W]e do not agree that the American Association of Neurological Surgeons (AANS) supports preclusion of his testimony under the Frye rule; rather it is relevant only to challenge Dr. Austin's credibility as an expert.” Id. at 983. Surely at trial, that “challenge” would be a cross-examination to which one could sell tickets.

However, more to the point, the dissent would have precluded the testimony entirely and would have upheld the trial court's dismissal: “If we permitted such irresponsible testimony [as offered by Dr. Austin], 'few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ills that flesh is heir to.' [citation omitted.] Even where Frye is inapplicable because no novel scientific evidence is proffered by the proposed expert, the trial court must still retain its broad discretion regarding the admissibility of evidence, and the trial court must be able to exclude opinions that are unreliable, speculative, and/or unsound and that fail to meet the same level of intellectual rigor characterized by other professionals in the relevant field of practice.” Id. at 990.

Whether one finds as did the association that Dr. Austin is a charlatan willing to trade his professional ethics for unworthy malpractice plaintiffs, or, as he claimed, a champion of patients seeking redress from a monolithic medical community, it is clear the disciplinary action of his association had dramatic effects. It is indeed hard to believe Dr. Austin had any further effectiveness as an expert witness.

Conclusion

In my client's case, clearly, the results of the APA's investigation panel could have an immense negative outcome. If found to have violated some ethical rule by making his diagnosis, his effectiveness as a forensic psychiatrist will be greatly diminished. Yet the investigation and the adjudication may be by the same panel. Although well meaning, the panel may be privy to contentions and testimony by the complainant of which my client may not be made aware and cannot, therefore, rebut. Simply put, local district ethics committees may not be prepared to offer the full range of procedural due process that the far-reaching consequences of their adjudication require. Access to the courts to correct even procedural irregularities takes time and is expensive. Further, of course, the actual finding of the committee is not likely to be open to court challenge. Whether a particular finding is supported by the evidence or whether the particular ethical standard is too vague to provide guidance in forming opinions is not open to review, at least under the Seventh Circuit opinion.

One final issue deserves mention. Physicians can be held accountable for examinations even where the examinee is neither a patient nor the party requesting the examination. For example, in Stanley v. McCarver, et al., 92 P.3d 849, (Ariz. 2004), the En Banc Supreme Court of Arizona allowed a plaintiff whose x-ray was read by the defendant to continue her case, although the defendant in fact was requested to read the x-ray for a limited purpose by the plaintiff's employer, who also paid for the examination. Certainly a finding that a forensic psychiatrist's opinion was “irresponsible,” to quote from Dr. Austin's case, could be the underpinning for a malpractice claim by an unhappy interviewee. While that is not possible in my client's case since he had quasi-judicial immunity (he had the same immunity as did the medical board and its hearing officer), that might not be the case for unhappy social security interviewees or pilots grounded by a negative evaluation.

The proliferation of professional organizational disciplinary actions seems at best unnecessary. After all, Dr. Austin did not convince a jury that the physician had committed malpractice. Judges do have a gatekeeper function that has been much litigated and has well-defined parameters. If an expert's opinion passes that gate, juries themselves seem less than mesmerized by less-than-convincing expert testimony. Indeed, they seem to do quite well in this task without the help (or possible hindrance) of the expert's professional organizations.

Fear of reprisals in any form can have a chilling effect on experts' willingness to give their opinions in these cases. This newest method of keeping such witnesses in check may limit junk testimony, but may also limit the expression of legitimately held opinions by medical experts. My client, I am sure, will maintain his independence in future forensic evaluations no matter what the outcome. Other experts may not be so inclined and, if so, we all may be the poorer.