AMA Resolutions

Resolution X (I-01)

Introduced by: American College of Preventive Medicine

Subject: "Expert" witness testimony by physicians on behalf of tobacco companies

Referred to: Reference Committee X

Whereas, Our AMA is on record that it will not tolerate false testimony by physicians (H-265.994); and

Whereas, There are some physicians who repeatedly testify dishonestly in litigation on behalf of tobacco companies, in blatant disregard of incontrovertible medical facts derived from scientific research; and

Whereas, One of the roles of the AMA Council on Ethical and Judicial Affairs is:

"To request that the President appoint investigating juries to which it may refer complaints or evidence of unethical conduct which in its judgment are of greater than local concern. Such investigative juries, if probable cause for action be shown, shall submit formal charges to the President, who shall appoint a prosecutor to prosecute such charges against the accused before the Council on Ethical and Judicial Affairs in the name and on behalf of the AMA. The Council may acquit, admonish, suspend or expel the accused" (B-6.4025); and

Whereas, The American Association of Neurological Surgeons (AANS) suspended a physician from membership for six months for testifying in a professional liability lawsuit without a reasonable basis for his testimony, in violation of the AANS code of ethics and expert witness guidelines; and

Whereas, The AANS action was challenged in court by the suspended physician, but the action was sustained by the lower court and the Seventh Circuit Court of Appeals (Austin v American Association of Neurological Surgeons), and the AMA Litigation Center filed a friend-of-the-court brief to support AANS; therefore be it

RESOLVED, That our AMA develop a mechanism to investigate claims of dishonest testimony by physicians in tobacco litigation, perhaps based on procedures outlined in the AMA Bylaws (6.4025), so that the Association will be able to "admonish, suspend or expel the accused" from membership in the AMA if found guilty; and be it further

RESOLVED, That the procedures to be developed would include the means to involve concerned state and specialty medical societies in the investigation, and to inform appropriate state medical licensing boards of any actions taken.

EXISTING AMA POLICY

E-9.07 Medical Testimony (Council on Ethical and Judicial Affairs opinion)

As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights.

Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.

The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician's evaluation of the case. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation. (II, IV, V, VII) Issued June 1986; Updated June 1996 based on the report "Ethical Guidelines for Medical Experts," adopted December 1995.

H-265.992 Expert Witness Testimony

Our AMA: (1) encourages each state medical society to work with its state licensing board toward the development of effective disciplinary measures for physicians who provide fraudulent testimony;

(2) provides legal and advocacy support to those medical and specialty organizations who seek to devise programs designed to discipline physicians for unprofessional conduct relative to expert witness testimony;

(3) continues to study and work with interested organizations to address the inherent difficulties in conducting the peer review of physicians who provide expert witness testimony;

(4) continues to educate physicians about ethical guidelines and professional responsibility regarding the provision of expert witness testimony;

(5) encourages each state medical society to work with its state licensing board to grant any out-of-state expert witness physician a temporary license at a nominal fee or at no cost for the express purpose of expert testimony on a per case basis, such that the expert witness is subject to the peer review process.

(6) encourages each state medical society to assist its state licensing board in the peer review process of expert witnesses by providing an expert witness committee program similar to the one in the state of Florida;

(7) works with the Federation of State Medical Boards to address problems regarding out-of-state expert witnesses; and

(8) acts as a clearinghouse for advice and support as the state medical associations develop their own expert witness committee programs. (BOT Rep. 18, I-98; Reaffirmed: Res. 221, A-99; Reaffirmation, A-00)

H-265.993 Peer Review of Medical Expert Witness Testimony

AMA policy is that: (1) the giving of medico-legal testimony by a physician expert witness be considered the practice of medicine, and (2) all medico-legal expert witness testimony given by a physician should be subject to peer review. (Res. 221, I-97; Reaffirmed: BOT Rep. 18, I-98; Reaffirmation A-99; Reaffirmation, A-00)

H-265.994 Expert Witness Testimony

(1) Regarding expert witnesses in clinical matters, as a matter of public interest the AMA encourages its members to serve as impartial expert witnesses.

(2) Our AMA is on record that it will not tolerate false testimony by physicians and will assist state, county and specialty medical societies to discipline physicians who testify falsely by reporting its findings to the appropriate licensing authority. (3) Existing policy regarding the competency of expert witnesses and their fee arrangements (BOT Rep. SS, A-89) is reaffirmed, as follows:

(a) The AMA believes that the minimum statutory requirements for qualification as an expert witness should reflect the following: (i) that the witness be required to have comparable education, training, and occupational experience in the same field as the defendant; (ii) that the occupational experience include active medical practice or teaching experience in the same field as the defendant; and (iii) that the active medical practice or teaching experience must have been within five years of the date of the occurrence giving rise to the claim.

(b) The AMA believes that model state legislation should be developed making it illegal for medicolegal consulting firms to take a contingent fee in personal injury litigation. Such arrangements threaten the integrity and the compensation goals of the civil justice system. Like the individual expert witness, the role of the medicolegal consulting firm which locates and supplies experts should be one of limited service to the judicial process. Contingent fee arrangements are plainly inconsistent with the scope of this responsibility. Model legislation will be developed which would change state law where necessary to permit cross-examination in accordance with the "Trower" holding and to prohibit payment of contingent fees for all types of medicolegal consultations, including management services provided by firms engaged in locating physician consultants. (Reversing long-standing precedent, the Illinois Supreme Court in the case of Trower v. Jones, 121 Ill. 2nd 211 (1988) upheld a trial court's discretion to allow cross examination on the following issues: (i) the amount of compensation received for the expert's consultation and testimony; (ii) the frequency of the physician's expert witness activities; (iii) the proportion of the physician's professional time devoted to and income derived from such activities; and (iv) the frequency with which he or she testified for either plaintiffs or defendants.) (Sub. Res. 223, A-92; Appended: Sub. Res. 211, I-97; Reaffirmation A-99)