Guiding Pediatrician Participation as Expert Witnesses

Commentary From the Committee on Medical Liability and Risk Management

The American Academy of Pediatrics (AAP) first became interested in medical liability issues in the 1950s. A national malpractice crisis during the 1970s prompted most of the professional liability insurers to leave the market and caused the AAP to renew its interest in the subject. But it was not until the 1980s that a provisional committee was established. Since then, the AAP has taken a leadership role in the formation of policy on guidance on topics such as expert witness participation in civil and criminal proceedings, professional liability insurance for residents and fellows, and disclosure of adverse events in pediatrics. Significant efforts have focused on conducting continuing medical education on pediatric-specific risk management strategies and educating pediatric residents on medicolegal issues. Over the decades, the Committee on Medical Liability (now Committee on Medical Liability and Risk Management—COMLRM) has become an essential resource to AAP leaders and members.

The mission of the COMLRM is to support the mission of the AAP and its equity, diversity, and inclusion initiatives through transformative medicolegal education and advocacy.

Guiding Pediatrician Participation as Expert Witnesses

Gary N. McAbee, DO, JD¹, William M. McDonnell, MD, JD², Jonathan M. Fanaroff, MD, JD³, Steven M Donn, MD⁴, James Scibilia, MD⁵, Julie Kersten Ake⁶

Affiliations: ¹Chief of Child Neurology, Infant and Children’s Hospital of Brooklyn at Maimonides Medical Center, Professor of Pediatrics at SUNY Downstate College of Medicine; ²McDonnell Legal Solutions, LLC, Omaha, NE; ³Director, Rainbow Center for Pediatric Ethic and Medical Director, Westside Neonatal Network, UH Cleveland Medical Center, Professor, Case Western Reserve University School of Medicine; ⁴Director, Division of Neonatal-Perinatal Medicine, University of Michigan Medical Center, Professor of Pediatrics at University of Michigan Medical School; ⁵Heritage Valley Pediatrics, Tri-State Pediatrics; ⁶American Academy of Pediatrics

Highlighted Articles From Pediatrics

• Committee on Medical Liability. Guidelines for expert witness testimony. Pediatrics. 1989;83(2):312-313
• Committee on Medical Liability. Guidelines for expert witness testimony in medical liability cases (S93-3). Pediatrics. 1994;94(5):755-756
• Committee on Medical Liability. Guidelines for expert witness testimony in medical malpractice litigation. Pediatrics. 2002;109(5):974-979
• Committee on Medical Liability. Expert witness testimony in civil and criminal proceedings. Pediatrics. 2009;124(1):428-438
• Narang SK, Paul SR, Committee on Medical Liability and Risk Management. Expert witness participation in civil and criminal proceedings. Pediatrics. 2017;139(3):e20164122

For nearly 35 years, the AAP COMLRM has published guidance for pediatricians, pediatric medical subspecialists, and surgical specialists on why and how to provide ethical, unbiased, and evidence-based expert testimony in legal proceedings.^1-5

Studies from the Periodic Survey of AAP Fellows have determined that medical malpractice lawsuits against pediatricians are finally decreasing, from a historic high of 33% of pediatricians being sued at some point during their careers, to 21% in the most recent survey (2015).⁶ The causes for this reduction in malpractice litigation are not yet clear, although the benefit of vaccines against meningitis, one of the common causes of pediatric malpractice lawsuits, may be part of the reason.⁷ Medical malpractice lawsuits continue to be a major stressor for primary care and subspecialty pediatricians and to impose substantial costs even if no award is paid out.

In fact, most malpractice cases are dropped soon after they are filed resulting in no payout.⁸ However, even these cases may require that the defense pay expert witnesses at high hourly rates. One study of 2,315 pediatric claims closed between 2003 and 2012 reported that the average expense for defending pediatric claims was 19% more than the average for all medical specialties and 33% more in those claims closed with an indemnity.⁹ Expert witness payments comprised a significant portion of total defense costs. Usually, a medical malpractice case cannot proceed without expert witness involvement.

Since 1989, the AAP COMLRM has written and periodically revised a policy statement most recently entitled “Expert Witness Participation in Civil and Criminal Proceedings.” This publication reviews the role of the pediatric expert in all aspects of the medical malpractice process and discusses the use of professional organization oversight to improve the expert witness process.

Prior to the initial expert witness statement published in 1989, pediatricians who participated as experts were considered, to some extent, pariahs among their peers. The few physicians who were actively engaged in this work were often viewed with disdain, and those pediatricians often had poor reputations. The initial policy statement explained the critical role of expert witnesses in the litigation process. “The interests of the public and both the medical and legal professions are best served when scientifically sound and unbiased expert witness testimony is readily available in civil and criminal proceedings. As members of the medical community, patient advocates, and private citizens, pediatricians have ethical and professional obligations to assist in the civil and criminal judicial processes.”¹

Subsequent iterations of the policy described more succinctly the specific role of medical experts and their place in the legal process. These later versions also introduced standards of evidence (Daubert and Frye) and qualifications for expert testimony. They explained the variations in state requirements and the strides made to improve the quality and accuracy of expert testimony. They described national efforts to improve expert testimony, including expert witness statements and affirmations, and to promote the constitution of peer review committees to provide oversight of expert testimony. Some states (eg, Florida) require an expert witness certificate for out-of-state experts, who agree that they are subject to discipline by the state board of medicine for improper testimony.¹⁰

The latest revision of the document recommends adoption of a “witness affirmation statement” to encourage truthful and unbiased opinions by experts in pediatric litigation cases. The intention behind the recommendation is that AAP fellows who voluntarily choose to utilize this instrument will not provide inaccurate testimony or testimony based on “junk science.” The recommendation also aims to promote ethical business practices in expert witness agreements.

As this policy statement has evolved over many years, the number of pediatricians participating as experts has increased from just a handful to 13% of respondents in the most recent Periodic Survey of Fellows.¹¹ Most of these pediatricians report that they provide their expert witness testimony primarily for the defense, and a majority report making 10% or less of their income from this expert witness work. The importance of broad participation from fellows acting as reputable, truthful, and unbiased experts is now better understood and appreciated.

References

1. Committee on Medical Liability. Guidelines for expert witness testimony. Pediatrics. 1989;83(2):312-313
2. Committee on Medical Liability. Guidelines for expert witness testimony in medical liability cases (S93-3). Pediatrics. 1994;94(5):755-756
3. Committee on Medical Liability. Guidelines for expert witness testimony in medical malpractice litigation. Pediatrics. 2002;109(5):974-979
4. Committee on Medical Liability. Expert witness testimony in civil and criminal proceedings. Pediatrics. 2009;124(1):428-438
5. Narang SK, Paul SR, Committee on Medical Liability and Risk Management. Expert witness participation in civil and criminal proceedings. Pediatrics. 2017;139(3):e20164122
6. Bondi SA, Tang SS, Altman RL et al. Trends in pediatric malpractice claims 1987-2015: results from the periodic survey of fellows. Pediatrics. 2020;145(4):e20190711
7. McAbee GN, Donn SM, Mendelson RA. Medical diagnoses commonly associated with pediatric malpractice lawsuits in the United States. Pediatrics. 2008;122(6):e1282-1286
8. Golann D. Dropped medical malpractice claims: their surprising frequency, apparent causes and potential remedies. Health Aff. 2011;30(7):hlthaff.2010.1132
9. Physician Insurers Association of America. A Risk Management Review of Malpractice Claims – Pediatrics. 2013
10. Florida Statutes § 766.102; 458.3175; 459.0066 (2022).
11. American Academy of Pediatrics. Executive summary, periodic survey #91, Experiences with Medical Liability.