Published: March 31, 2007 11:10 pm         

Group seeking ‘code of ethics’ for medical witnesses

In one celebrated case involving an asbestos-related claim against CSX Corp., the plaintiff’s lawyer in the Huntington civil trial produced a physician as a medical expert on behalf of his client.

But suddenly, when the defense began checking into matters, a mystery developed.

His name was markedly absent from the list of doctors maintained by three medical licensing agencies.

Alarmed by that, the defense decided to examine the personal data of the “expert” witness.

An address on Fifth Avenue in Huntington assigned to the man on court documents turned out to be an empty lot. His telephone number actually had belonged to a woman since 1994.

“They had clearly fabricated the name of this certifying physician,” says Steve Cohen, executive director of Citizens Against Lawsuit Abuse.

“There was a case in Ohio County recently in which an expert witness hadn’t practiced medicine in 10 years.”

Cohen alluded to those examples to highlight an overall study performed by the Center for Survey Research at the University of Virginia.

In its study, the center learned most doctors in West Virginia doubt the “expert” testimony if it is given beyond a physician’s specialty or is motivated by money.

Sixty-four percent of doctors surveyed rated the overall quality of expert witnesses as “poor” or “only fair.” Only 27 percent felt it was “good.” And a mere 9 percent considered it “very good” or “excellent.”

The survey found 72 percent had seen or heard testimony by a medical expert they felt was either in error or based on questionable science.

All but 5 percent agreed that testimony as supportive diagnoses provided for a fee was tainted.

Four in five thought medical expert testimony had a negative impact on the integrity of their profession.

Cohen plans to present the research to both the West Virginia State Bar and the state Legislature, hopefully to inspire some reforms.

Specifically, he’d like to see a “code of ethics” created to prevent misleading testimony given in the name of science.

“The Legislature could require standards for so-called expert testimony in civil cases,” Cohen said.

“The bar could do it, but the Legislature could mandate certain minimum standards for expert testimony.”

One physician, Dr. Gregory Saracco of Wheeling, a former president of the Ohio County Medical Society and a leading player in the 2001 medical malpractice reforms enacted by the Legislature, views the survey as a springboard for change.

“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,” Saracco said.

“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.”

Federal guidelines could serve as a pattern for state policymakers and members of the bar, he suggested.

“Junk science cannot be allowed in our courts,” the doctor said.

“There must be no tolerance for testimony that is pure science fiction, which leads to frivolous lawsuits and an outright abuse of the court system.”

A code of ethics was supported by 96 percent of the physicians interviewed in the University of Virginia research. And 94 percent felt that payment for expert testimony that hinges on the outcome of a case wasn’t ethical.

“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,” Saracco said.

“It not only damages the integrity of law, it undermines patient confidence in the medical profession.”

— E-mail: mannix@register-herald.com