Day on Torts

I wrote two posts in the last year (here and here)about doctors who have been attacked by organized medicine for giving testimony on behalf of plaintiffs in medical malpractice lawsuits.  The goal of these efforts is not only to punish the doctors for having the audacity to testify for a plaintiff in a medical malpractice case but also to discourage other doctors from testifying.

This weekend I received this comment to one post :

I'm a physician but I do not want to reveal my real name because this topic is so controversial. In the past I would infrequently give depositions or testify in malpractice cases. I think I worked on a total of 20 cases in about 15 years. I have worked both with defense and plaintiff's attorneys but plaintiff work is easier to get so I did somewhat more of that. When I began to read about the horrendous ordeals some physicians went through when some board picked apart their testimony, I decided to give it up entirely.

There actually should be a law protecting expert witnesses from this type of abuse. Also, the theory that expert testimony constitutes medical practice is completely preposterous. The AMA and other physician groups should not be allowed to get away with it. I've tried speaking up about this at some medical meetings, but I now have given up. Most doctors are completely convinced that anything that one can do to make life harder for plaintiffs is to their benefit. I think that patients and patient advocates need to speak up and contact their representatives in Congress and the state legislatures or the AMA is going to get it's way.

To the writer:  Thanks for taking the time to express your thoughts on this important subject.  While I agree that patients and patient advocates need to speak out on this issue, I hope that you will do so, too.  As a physician, your observations and opinions will really help motivate legislators to action.

Wow. That took a lot of guts for a physician to write that post.

Unfortunately, some people see this issue as a lawyer vs. doctor issue: it's not. It's a patients' rights issue. Patients have the right (and deserve) quality medical care. Care that is within the applicable standard of care. If they don't get it, they should be compensated.

Any effort by anyone to prevent a patient who has been wronged from being compensated is contrary to the law, fairness, and morality.

That's my two cents' worth.

What a load of crap. I guess that these "specialty boards" are arbitrarily sanctioning (with high probabality of litigation} these "expert" witnesses in order to suppress testimony. I think that if you look into this matter, you will find that any sanctioning which has been done, has been done with good reason--i.e., the "expert" was at a minimum misinformed about appropriate care or simply lying.

Hello again,

I’m the doctor who wrote previously and whom you quoted.

Though I don’t want to get into an extended debate on this, let me respond to a few of the comments.

First, you’re right that I should be willing to contact my representatives. I did send an email to my Congressman several years ago when we were in the midst of another round of furor over the “malpractice crisis”. I don’t remember precisely, but I believe I stated that I practice medicine in his state and though I do worry about malpractice suits and I would not be pleased to be subjected to one, I believe that the “crisis” has been exaggerated and that the focus should really be on reducing the mishaps that actually occur in medical practice. I think I also pointed out that in 20 years of practice I do not even know another physician who has ever lost a malpractice suit. I do know several who have gone bankrupt because they could not manage their practice to keep up with changes in managed care rules. Probably there are some that I don’t know about, but I don’t see it as a big problem. I think I made a few other comments about whatever was being proposed at the time.

About a month later a letter arrived from the Congressman. It started off “Dear Doctor….” so someone read my letter to that extent. But then it went on to say something like the following: “Like you, Congressman X is very concerned about problems caused by the current malpractice crisis. He is working closely with the AMA to find solutions to this problem that will be fair to all concerned.” So much for a meaningful communication with my congressman. But that doesn’t mean I shouldn’t try again.

Regarding Tony Duncan’s compliment (“That took a lot of guts”), I wish I had more “guts” (other than the physical guts that my belt is struggling to hold in. I wouldn’t write anonymously if I had more of the good kind of “guts.” But most people who write about sensitive or controversial issues on the internet actually should be careful. For example, if I do ever want to give depositions in cases again, it’s not going to be very good to have a paper trail of opinions about malpractice splashed over the internet. And if I get sued myself, it could complicate my defense regardless of what I say. Will Rogers once said “Never miss an opportunity to keep your mouth shut” and I hope that a few online comments aren’t too serious a violation of that rule.

Also, I agree with Tony Duncan’s other comments. Patients’ rights are important. I’m not only a doctor but I’m a patient too. Fortunately I’m not in the midst of any serious medical problem right now but we all will have them some day unless we just quickly drop dead. Through the years my family and that of my wife has had a moderate number of serious medical problems. There were a few incidents in which the medical care was really bad and in one instance it lead directly to a serious harm, e.g. my father-in-law’s death. We could have sued but no one in my family is really into suing. Almost 1/3 of the adults over 30 in our family are physicians and close to ½ are attorneys. Interestingly, the only members of our family who have ever sued anyone themselves are a few of the physicians, and then not for malpractice. My father-in-law was almost 90 and he didn’t have that many years left in him. That’s not to say that the lives of the elderly are not important, but when a person is extremely frail a small error is more likely to cause great harm. I think a significant percentage of the 100,000 (or even 200,000) deaths induced yearly in hospitals by medical mistakes are similar to the case of my father-in-law. If you admit a really old, frail person to a hospital enough times, he or she is very likely to die during one of the admissions, sometimes due to a mishap that probably could have been avoided but which would not have killed the average person. In any case, I mention that case only to show that I’m not an advocate of suing over small provocations—not even over a case in my own family resulting in death. But there are situations for which I would sue my physician or my family member’s physician and I don’t want to lose the ability to do so because of restrictions that are crafted just to reduce the number of lawsuits.

In reply to “RADICULOUS,” I disagree. I believe that if unbiased fair-minded persons were to examine what these review boards were doing, the majority of observers would come to the conclusion that they were bent on an agenda of punishing expert witnesses to suppress malpractice suits. Typically only plaintiff witnesses are even reviewed. This is, of course, almost inevitable because in most cases a person must be a member of the specialty society to even bring forth a complaint. Some may field complaints from others. But in any case, they have complete discretion over which cases they pursue. I have read the information about one of the most publicized cases, the Fullerton case. As far as I can tell, Fullerton did absolutely nothing wrong. He simply testified and gave opinions that seem very respectable and credible. Not everyone would agree exactly with his opinions. But this is what happens in lawsuits. The experts will differ and that does not mean that either one of them is doing anything wrong. The fact that there even exists this quasi legal mechanism whereby a medical society can attack him and hope to evade the consequences under the veil of peer-review immunity is more frightening to me than the whole issue of malpractice suits. I’m hoping he wins and gets millions and millions of dollars from each and every member of that board. If he put out a request for donations to pay his legal bills, I would probably give him some money.

Many aspects of so-called malpractice reform are not very fair. Consider the time limit to file a lawsuit. As I mentioned, my family and I have been blessed with pretty good health. But we have been sick. When you are discharged from the hospital having been treated for anything serious, I can tell you that for the next six months you are doing little else but sorting through the bills, a large percentage of which have serious errors almost all in the hospital’s favor. You don’t even regain your equilibrium for about a year even if everything has come out all right. If there is to be any just and fair adjustment on the time limit to file a lawsuit, I would think that it would be most fair to add a year to the time allowed for any other type of suit. Reducing the time is not done in the interests of fairness or justice. This is done simply because the AMA and other physician groups have pressured the legislatures to enact these time limits.

Likewise, many of the rules which have either been enacted or proposed to restrict availability of experts have nothing to do with fairness or justice. An expert is supposed to be a person who knows a lot about the subject. Why does an expert have to spend at least 50% of his time practicing? These percentages do not mean very much anyway. I might spend 30% “actually practicing” (i.e. seeing patients face to face) and an equal amount of time writing up or studying about the cases. So is that 60% or 30%. Or what if I spend 100% of what I consider my practice on seeing patients, but I am also doing other things. Are we talking about a standard 40 hour week. Not everyone even structures his or her time the same way. One person might see 30 patients a week and consider that 100% time. Another might see 150 patients and consider that 75% time. I can understand a requirement that a person is actually continuing to practice and seeing cases similar to the case being litigated, but the imposition of arbitrary percentages or numbers serves no purpose that has anything to do with justice. Likewise, it is ridiculous to require that experts balance their plaintiff and defendant work. How does that make them more knowledgeable about the subject. If we had real honest malpractice reform we would eliminate every one of these restrictive requirements that have been recently enacted in many jurisdictions.

Finally, there is a little mentioned aspect of this question that pertains to the harm that might be done to physicians by attempts to regulate their speech. Do we really want to have our opinions that we give outside of the usual medical setting to be considered to be medical practice? Am I the only one that sees many potential adverse unintended consequences from this.

If offering my opinion in court is medical practice, isn’t it also medical practice for me to present grand rounds at a medical center and give my opinions about cases that may even be current cases still being treated. If I am invited to, say, the University of Tennessee to speak on myocardial infarctions and I comment on cases currently in their intensive care unit, can I be hauled into court for that? Do I need to get a temporary Tennessee license to come there and speak? Will I get adversely reviewed by the Tennessee Medical Society if I give my opinion that drug X is not very good for angina, but all the members of the committee own stock in the company that makes it?

And how about the numerous doctors who go around touting drugs in the employ (sometimes the indirect employ) of various pharmaceutical companies. If I go to Indiana for five thousand dollars and a nice weekend at a fancy hotel and tell some of my fellow doctors that Plavix is really great and review all the literature in favor of it, am I practicing medicine in Indiana without a license? Well let’s compare this to testifying in court.

In the courtroom, the medical case is already over. Often the patient is dead. A very limited audience hears the testimony and it is unlikely to directly influence any existing cases. When speaking for a drug company other doctors almost alway ask for advice about current cases. They are very likely to act upon the suggestions of a so-called expert (an expert as defined by the drug company that is paying him or her). Sounds to me like the speaker for the drug company is practicing medicine a lot more than the expert in the court room. Sounds like he or she needs to be licensed by the state for that activity.

Also, consider that for the courtroom expert, there are at least in theory the Daubert rules that aim at restricting “junk science.” Also, at least in theory, an errant expert can actually be prosecuted for perjury. Apparently there is currently one physician, a cardiac surgeon, being prosecuted for perjury in Florida. He was a plaintiff’s witness. I am not really familiar with the case, but I would say: “If he lied on the stand, prosecute him for perjury. That’s what the law is for.” If anything this proves that testimony already has an existing corrective mechanism built in. But where is the corrective mechanism for the physician serving as a shill (oops, I mean “thought leader”) for the pharmaceutical companies? It sounds to me as if all of these statements made by physicians, except possibly the ones made in court which are already supervised by a judge and given under the possibility of prosecution for perjury, need to be considered medical practice and regulated.

And perhaps this will happen. But I certainly don’t want every word that comes out of my mouth to be considered part of my practice track record. I’m afraid that’s where this is all leading and it is going to be very unpleasant and objectionable to physicians. It is very hard to believe that we can consider courtroom testimony to be medical practice and not consider speaking, writing articles in journals and textbooks, and advertising medications for drug companies to be practice as well. If there is any difference between these activities, the courtroom testimony or the depositions would be the last thing that I would consider to be medical practice. In addition, it’s not going to take long for the trial lawyers to figure out some mechanism to start hauling the defense experts in front of some kind of board in order to punish them. In fact, I would predict that one upshot of this is going to be a more vigorous effort by plaintiff attorneys to track what defense experts say with the intention of getting some of them prosecuted for perjury.

A few years, a neurologist serving as a defense expert in Massachusetts allegedly was caught lying. The judge decided that his testimony constitute “a fraud on the court” and ordered him to pay the fees related to a new trial of the case. Interestingly, this was later overturned on appeal. Though the appellate judge found the defense expert’s testimony disturbing, he did not feel it merited the sanctions given. I personally find it disturbing that the sanctions were overturned, but it is rather hard to prove that someone deliberately lied and there should be a rather high level of proof required for such a thing. I can almost guarantee you that if such a thing were done by a plaintiff’s expert, that expert would be disciplined by his or her professional society. At least the legal system went through a process attempting to discipline the doctor. Perhaps wisely, it decided that no discipline was needed. Of course his medical society failed even to review the case because he was a defense expert and the societies only attempt to discipline plaintiff witnesses.(http://www.socialaw.com/slip.htm?cid=16342&sid=120).

I do not want to harp on this too much, but I saw an article from 2002 which, in my opinion, exemplies what used to be the attitude toward expert witness testimony just a few years ago. It's in "Managed Care" and it's written by a Dr. Victoroff, whom I have never met, but who seems to have been a member of his state medical society back when this was written. The url is http://www.managedcaremag.com/archives/0209/0209.ethics.html

He writes:

"Peer Review of the Inexpert Witness, or... Do You Trust Chickens To Guard the Coop?
By Michael S. Victoroff, MD

We've just had an interesting session at our State Medical Society Council on Ethics and Judicial Affairs. It dealt with peer review of medical expert testimony.

Some members asked us to look into a perceived problem. Occasionally, a physician retained as an expert in a legal case offers an opinion or gives testimony that is dubious, inaccurate, or outlandish enough to offend fellow professionals. Our medical society was urged to discipline physicians who render unprofessional testimony. This request originated in some people's indignation at certain adverse opinions in medical malpractice trials.

Initially, our discussion did focus on medical malpractice, but we also considered other kinds of personal injury claims, criminal matters, environmental cases, and other issues. There are actually a fair number of occasions when doctors appear in court. We didn't discuss experts who appear in the media (including those who write columns for journals), Internet advice givers, or authors of medical books. Actually, when you think of all the ways that medical people communicate with the world, those that are "peer reviewed" are probably in the minority. (I can't quantify this, but it seems right.)

What we did ask ourselves was whether there is a need for oversight of physician legal testimony by state medical societies, and whether this would be an appropriate activity for state societies to undertake.

Our conclusions were "No" and "No." In the first place, there is already a plethora of mechanisms in the law to reign in truly bad witnesses. Granted, these don't always work, but adding another party to the mix wouldn't necessarily help. Second, a state medical society -- or the AMA for that matter -- has neither legal nor ethical standing that would allow it properly to exert power over the speech of witnesses. Plus, subjecting doctors to the threat of sanction for their statements under oath would conceivably intimidate good practitioners as much as bad ones.

Powerful talisman
Legitimate and ethical peer review is a burden a profession proudly imposes upon itself. It is a wellspring of good, and a powerful talisman against abuse. However, again depending on the state where we practice, many of us have felt the dark side of this force, in the form of biased, irresponsible, or outright fraudulent testimony from our less worthy colleagues.

It's understandable that physicians unfamiliar with legal procedure would look to their own organizations for protection against rogue colleagues. But, as sweet as it sounds to punish villains who vouch indefensible fictions under oath, this quest is fraught with legal and ethical perils when conducted by fellow physicians. Any professional or trade organization faces serious problems if its actions might be interpreted as muzzling its members' free speech -- let alone if it presumes to control, guide, or tamper with legal witnesses.

You see how this looks? Even in the name of evidence-based testimony, we must be terribly careful to avoid the appearance of circling our professional wagons.

As doctors, we have always to bear in mind the accusation some are always ready to hurl, that our professional societies constitute "protective guilds" or "good-old-boy networks." To our shame this has been, and continues to be, sporadically true of medical communities at some times and places.

Although this medical cosa nostra culture is a dying serpent today, there is still poison in the fangs. Organized medicine must be scrupulous to avoid giving any perception that our motives are to protect physicians at the expense of patients.

Another reason the medical society would be off base in second-guessing physician experts is the strong belief courts have that only they are entitled to determine who is qualified to serve as a witness in any given case.

The AMA's position is a bit contrary to this legal principle. In Policy H-265.993, "Peer Review of Medical Expert Witness Testimony," it holds that "(1) the giving of medico-legal testimony by a physician expert witness be considered the practice of medicine, and (2) all medical-legal expert witness testimony given by a physician should be subject to peer review." Although these statements make initial intuitive sense, I have reservations that neither can logically hold up under scrutiny.

For one thing, the credibility of legal testimony is a matter of withstanding cross examination, as well as other legal tests that can be very technical, depending on the matter and the venue.

All kinds of experts may figure in a medical case. Psychologists, pharmacologists, toxicologists, biomedical engineers, nurses, chemists, and numerous other professions may be called to support or rebut a physician's testimony. I don't see that being a medical doctor, in itself, is different from these others in a way that makes physician testimony subject to a special qualification.

I grant there is a slippery slope on which it's sometimes tempting to say, "Everything a doctor does that involves professional skill constitutes the practice of medicine." But, there are some preserves of "professional" activity that don't fit my concept of "practice of medicine." Courtroom testimony is one. Others are teaching, lab research, and serving as technical adviser to a TV show.

Defining something as "practice of medicine" allows the state's medical practice act and the jurisdiction of its licensing board to be invoked with respect to some activity. But, these powers are off target when it comes to medical testimony. The medical practice act typically guards against "practice of medicine without a license," while the licensing board determines "unprofessional conduct." These are not really the best rubrics by which to control physicians of whose opinions we disapprove.

The latter is clearly the intent of the AMA's policy. If medical testimony constitutes the practice of medicine, then "mal-testimony" might comprise unprofessional conduct of the sort that could trigger a licensure hearing.

This knife cuts two ways. Almost certainly, fear of adverse actions against their licenses (admonition, suspension, or revocation) would tend to "chill" the enthusiasm of irresponsible witnesses. Likewise, it would inhibit the participation of some of the most honest and knowledgeable experts. Lawyers for both plaintiffs and defendants would routinely come to use the threat of license review as a damper on the other side's experts.

Given the imperfection of board reviews, it is inevitable that someone's valid and sincerely expressed opinion will someday put its author in serious professional jeopardy. Are we secure enough in our peer review process -- and our own opinions -- to wish this?

We should not despair that local medical societies are ruled out as defenses against "mal-testimony." The job isn't a good fit for them. For better and worse, it's to our judicial system that we have to look for improvements in the judicial system.

I've always detested that sophomoric argument that you shouldn't have a fox guarding your chicken coop. If I had a chicken coop, I sure wouldn't want chickens guarding it. I'd want foxes and wolves and saber-toothed tigers. The courtroom is not the place for peer review. The best defense against bad witnesses is simply -- good witnesses."

I think he makes the case much better than I do.

I just noticed that the long post I made came out with some weird characters. The font I used must have been incompatible with your blog software. Though I think it is still basically readable, let me try to send this again.

Repetition of comment that was garbled:

Hello again,
I'm the doctor who wrote previously and whom you quoted.
Though I don't want to get into an extended debate on this, let me respond to a few of the comments.
First, you're right that I should be willing to contact my representatives. I did send an email to my Congressman several years ago when we were in the midst of another round of furor over the "malpractice crisis". I don't remember precisely, but I believe I stated that I practice medicine in his state and though I do worry about malpractice suits and I would not be pleased to be subjected to one, I believe that the crisis has been exaggerated and that the focus should really be on reducing the mishaps that actually occur in medical practice. I think I also pointed out that in 20 years of practice I do not even know another physician who has ever lost a malpractice suit. I do know several who have gone bankrupt because they could not manage their practice to keep up with changes in managed care rules. Probably there are some that I don't know about, but I don't see it as a big problem. I think I made a few other comments about whatever was being proposed at the time.
About a month later a letter arrived from the Congressman. It started off "Dear Doctor". So someone read my letter to that extent. But then it went on to say something like the following: "Like you, Congressman X is very concerned about problems caused by the current malpractice crisis. He is working closely with the AMA to find solutions to this problem that will be fair to all concerned". So much for a meaningful communication with my congressman. But that doesn't mean I shouldn't try again.
Regarding Tony Duncan's compliment ("That took a lot of guts"), I wish I had more "guts" (other than the physical guts that my belt is struggling to hold in. I wouldn't write anonymously if I had more of the good kind of "guts". But most people who write about sensitive or controversial issues on the Internet actually should be careful. For example, if I do ever want to give depositions in cases again, it's not going to be very good to have a paper trail of opinions about malpractice splashed over the Internet. And if I get sued myself, it could complicate my defense regardless of what I say. Will Rogers once said, "Never miss an opportunity to keep your mouth shut" and I hope that a few online comments aren't too serious a violation of that rule.
Also, I agree with Tony Duncan's other comments. Patients' rights are important. I'm not only a doctor but I'm a patient too. Fortunately I'm not in the midst of any serious medical problem right now but we all will have them some day unless we just quickly drop dead. Through the years my family and that of my wife has had a moderate number of serious medical problems. There were a few incidents in which the medical care was really bad and in one instance it lead directly to a serious harm, e.g. my father-in-law's death. We could have sued but no one in my family is really into suing. Almost 1/3 of the adults over 30 in our family are physicians and close to half are attorneys. Interestingly, the only members of our family who have ever sued anyone themselves are a few of the physicians, and then not for malpractice. My father-in-law was almost 90 and he didn't have that many years left in him. That's not to say that the lives of the elderly are not important, but when a person is extremely frail a small error is more likely to cause great harm. I think a significant percentage of the 100,000 (or even 200,000) deaths induced yearly in hospitals by medical mistakes are similar to the case of my father-in-law. If you admit a really old, frail person to a hospital enough times, he or she is very likely to die during one of the admissions, sometimes due to a mishap that probably could have been avoided but which would not have killed the average person. In any case, I mention that case only to show that I'm not an advocate of suing over small provocations, not even over a case in my own family resulting in death. But there are situations for which I would sue my physician or my family member's physician and I don't want to lose the ability to do so because of restrictions that are crafted just to reduce the number of lawsuits.
In reply to "RADICULOUS", I disagree. I believe that if unbiased fair-minded persons were to examine what these review boards were doing, the majority of observers would come to the conclusion that they were bent on an agenda of punishing expert witnesses to suppress malpractice suits. Typically only plaintiff witnesses are even reviewed. This is, of course, almost inevitable because in most cases a person must be a member of the specialty society to even bring forth a complaint. Some may field complaints from others. But in any case, they have complete discretion over which cases they pursue. I have read the information about one of the most publicized cases, the Fullerton case. As far as I can tell, Fullerton did absolutely nothing wrong. He simply testified and gave opinions that seem very respectable and credible. Not everyone would agree exactly with his opinions. But this is what happens in lawsuits. The experts will differ and that does not mean that either one of them is doing anything wrong. The fact that there even exists this quasi-legal mechanism whereby a medical society can attack him and hope to evade the consequences under the veil of peer-review immunity is more frightening to me than the whole issue of malpractice suits. I'm hoping he wins and gets millions and millions of dollars from each and every member of that board. If he put out a request for donations to pay his legal bills, I would probably give him some money.
Many aspects of so-called malpractice reform are not very fair. Consider the time limit to file a lawsuit. As I mentioned, my family and I have been blessed with pretty good health. But we have been sick. When you are discharged from the hospital having been treated for anything serious, I can tell you that for the next six months you are doing little else but sorting through the bills, a large percentage of which have serious errors almost all in the hospital's favor. You don't even regain your equilibrium for about a year even if everything has come out all right. If there is to be any just and fair adjustment on the time limit to file a lawsuit, I would think that it would be most fair to add a year to the time allowed for any other type of suit. Reducing the time is not done in the interests of fairness or justice. This is done simply because the AMA and other physician groups have pressured the legislatures to enact these time limits.
Likewise, many of the rules that have either been enacted or proposed to restrict availability of experts have nothing to do with fairness or justice. An expert is supposed to be a person who knows a lot about the subject. Why does an expert have to spend at least 50% of his time practicing? These percentages do not mean very much anyway. I might spend 30% "actually practicing" (i.e. seeing patients face to face) and an equal amount of time writing up or studying about the cases. So is that 60% or 30%. Or what if I spend 100% of what I consider my practice on seeing patients, but I am also doing other things. Are we talking about a standard 40 hour week? Not everyone even structures his or her time the same way. One person might see 30 patients a week and consider that 100% time. Another might see 150 patients and consider that 75% time. I can understand a requirement that a person is actually continuing to practice and seeing cases similar to the case being litigated, but the imposition of arbitrary percentages or numbers serves no purpose that has anything to do with justice. Likewise, it is ridiculous to require that experts balance their plaintiff and defendant work. How does that make them more knowledgeable about the subject? If we had real honest malpractice reform we would eliminate every one of these restrictive requirements that have been recently enacted in many jurisdictions.
Finally, there is a little mentioned aspect of this question that pertains to the harm that might be done to physicians by attempts to regulate their speech. Do we really want to have our opinions that we give outside of the usual medical setting to be considered to be medical practice? Am I the only one that sees many potential adverse unintended consequences from this?
If offering my opinion in court is medical practice, isn't it also medical practice for me to present grand rounds at a medical center and give my opinions about cases that may even be current cases still being treated. If I am invited to, say, the University of Tennessee to speak on myocardial infarctions and I comment on cases currently in their intensive care unit, can I be hauled into court for that? Do I need to get a temporary Tennessee license to come there and speak? Will I get adversely reviewed by the Tennessee Medical Society if I give my opinion that drug X is not very good for angina, but all the members of the committee own stock in the company that makes it?
And how about the numerous doctors who go around touting drugs in the employ (sometimes the indirect employ) of various pharmaceutical companies? If I go to Indiana for five thousand dollars and a nice weekend at a fancy hotel and tell some of my fellow doctors that Plavix is really great and review all the literature in favor of it, am I practicing medicine in Indiana without a license? Well let's compare this to testifying in court.
In the courtroom, the medical case is already over. Often the patient is dead. A very limited audience hears the testimony and it is unlikely to directly influence any existing cases. When speaking for a drug company other doctors almost always ask for advice about current cases. They are very likely to act upon the suggestions of a so-called expert (an expert as defined by the drug company that is paying him or her). Sounds to me like the speaker for the drug company is practicing medicine a lot more than the expert in the courtroom. Sounds like he or she needs to be licensed by the state for that activity.
Also, consider that for the courtroom expert, there are at least in theory the Daubert rules that aim at restricting "junk science". Also, at least in theory, an errant expert can actually be prosecuted for perjury. Apparently there is currently one physician, a cardiac surgeon, being prosecuted for perjury in Florida. He was a plaintiff's witness. I am not really familiar with the case, but I would say: "If he lied on the stand, prosecute him for perjury. That's what the law is for." If anything this proves that testimony already has an existing corrective mechanism built in. But where is the corrective mechanism for the physician serving as a shill (oops, I mean "thought leader") for the pharmaceutical companies? It sounds to me as if all of these statements made by physicians, except possibly the ones made in court which are already supervised by a judge and given under the possibility of prosecution for perjury, need to be considered medical practice and regulated.
And perhaps this will happen. But I certainly don't want every word that comes out of my mouth to be considered part of my practice track record. I'm afraid that's where this is all leading and it is going to be very unpleasant and objectionable to physicians. It is very hard to believe that we can consider courtroom testimony to be medical practice and not consider speaking, writing articles in journals and textbooks, and advertising medications for drug companies to be practice as well. If there is any difference between these activities, the courtroom testimony or the depositions would be the last thing that I would consider to be medical practice. In addition, it's not going to take long for the trial lawyers to figure out some mechanism to start hauling the defense experts in front of some kind of board in order to punish them. In fact, I would predict that one upshot of this is going to be a more vigorous effort by plaintiff attorneys to track what defense experts say with the intention of getting some of them prosecuted for perjury.
A few years, a neurologist serving as a defense expert in Massachusetts allegedly was caught lying. The judge decided that his testimony constitute "a fraud on the court" and ordered him to pay the fees related to a new trial of the case. Interestingly, this was later overturned on appeal. Though the appellate judge found the defense expert's testimony disturbing, he did not feel it merited the sanctions given. I personally find it disturbing that the sanctions were overturned, but it is rather hard to prove that someone deliberately lied and there should be a rather high level of proof required for such a thing. I can almost guarantee you that if a plaintiff's expert did such a thing, that expert would be disciplined by his or her professional society. At least the legal system went through a process attempting to discipline the doctor. Perhaps wisely, it decided that no discipline was needed. Of course his medical society failed even to review the case because he was a defense expert and the societies only attempt to discipline plaintiff witnesses.(http://www.socialaw.com/slip.htm?cid=16342&sid=120).

I think this will transmit without those strange characters