Defining Negligence: The Expert Witness Problem => Spring 2004

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Defining Negligence: The Expert Witness Problem => Spring 2004

Robert W. Yelverton, M.D.

Recently, while acting as an expert witness in defense of two Florida Obstetrician Gynecologists, I read the depositions and listened to testimony of two separate plaintiff’s experts. Both gave such fraudulent testimony as to what constitutes negligence in the cases that I developed an acute case of IBS with slow recovery. These two experts, both Fellows of ACOG, gave testimony that was neither fair nor accurate as to the standard of care and causation issues in the cases being prosecuted.

These two cases reminded me that the problem in Florida is not only one of explosive litigation, aggressive trial lawyers and outrageous jury awards, but another problem that is just as damaging: unfair, inaccurate and unethical expert witness testimony. Many of these highly educated ‘professional’ expert witnesses travel many miles and are paid handsomely to knowingly offer untruthful and damaging testimony against physicians being sued in this state.

In September 2002, in an effort to police its Fellows to some extent, the American College of Obstetrics and Gynecology released the Expert Witness Affirmation. This document called for an expert witness to affirm, among other things, that he or she has relevant expertise and will provide true and impartial testimony based on generally accepted standards of the specialty. This Affirmation enunciated principles that expert witnesses were professionally obligated to adhere to. The Affirmation relies on the principles already established by ACOG in a policy statement entitled Ethical Issues Related to Expert Testimony by Obstetricians and Gynecologists and is in the ACOG Code of Professional Ethics.

In one of the cases mentioned above, I had signed the Affirmation statement but the plaintiff’s expert had not. In testimony, I acknowledged that I had signed the Affirmation and an enlarged exhibit of the affidavit was shown to the jury. When, in cross-examination, the plaintiff’s expert testified that he had refused to sign the Affirmation because he felt that it would only result in complaints lodged against plaintiff’s experts, his testimony seemed weak and was ineffective. FOGS members, when faced with a lawsuit for alleged negligence, should recommend that the expert witness retained for the defense sign the Affirmation and that the Affirmation be presented to the jury. The document is very powerful testimony as to the ethics of the expert witness that is truly trying to do the right thing.

Members of FOGS should be aware that if a Fellow of ACOG feels that another Fellow of ACOG has testified unfairly in a malpractice action, a grievance can be lodged with the Grievance Committee of ACOG. I encourage all FOGS members to utilize this course of action should you feel you have experienced testimony against you or a colleague that was either unfair or inaccurate. FOGS will be happy to assist you in both evaluating alleged unfair testimony and assisting you in the preparation of a grievance prior to sending this information to ACOG.

We have been unsuccessful in convincing the Florida Legislature to affect reasonable tort reform. We are frequently unsuccessful in the courtroom in defending non-meritorious cases when the plaintiff’s expert testimony is fraudulent. By utilizing the process of lodging a grievance with the ACOG Grievance Committee we can now address the expanding problem of fraudulent expert witness testimony.

Contact me if you need my help.
Telephone: (813) 286-0033
E-mail: ryelverton@tbwc.com