Med Law Blog

There have been two recent developments regarding the enforcement of expert witness standards, one enforcing standards by a society and one declining to enforce the standards in a private defamation action.

The American Academy of Orthopaedic Surgeons suspended one member and censored another for violating the Standards of Professionalism (SOPs) on orthopaedic expert witness testimony. The suspension was based in part on the expert witness’ failure to review all pertinent medical records related to a particular patient prior to rendering an opinion and the censure was based upon a failure to provide opinions and/or factual testimony in a fair and impartial manner, the latter being based upon the witness’ failure to adequately disclose the extent of his expert witness testimony in other cases.

While the AAOS was enforcing expert witness standards, the United States Court of Appeals for the Seventh Circuit, in the case of Margaret McGregor vs. L. David Rutberg, found that the expert witness standards of the American Association of Neurological Surgeons did not create a contract between members of the society allowing individual members to enforce the standards. Dr. McGregor sued Dr. Rutberg for defamation and breach of contract, alleging that the AANS standards created an obligation between the two individual physicians. The Court concluded that only the AANS had a cause of action for enforcing its standards and that the standards did not create third party beneficiary contracts between the members.

On separate two occasions, I reported an expert witess who corroborated a frivolous claim in Florida. I reported one to ACEP and one to ACR - both organizations have guidelines regarding members testifying as expert witnesses. I never heard back from either. I wonder whether the organizations that are promulgating these standards are actually enforcing them. Are there any reports and/or studies relating to same?