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The Role of the Expert Witness

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Lancet Staff Report

Dr. William Luria is president of Lancet Indemnity and presented a session on this topic at the National Risk Retention Association (NRRA) national conference in 2010. Dr. Luria framed his presentation with a historical treatise on the role of the expert witness.

We have heard the terrible stories of Civil War surgeons amputating limbs. This was the standard of care at the time. Following the war, doctors actually started trying to save the limbs. While the X-Ray became a tool in this effort, it also brought about the first wave of medical malpractice claims.

It was at this time in American history that the American Medical Association was formed in part to combat the crisis of such claims. The Association worked to move medical malpractice from contract law to tort law and medical malpractice insurance was formed. Unfortunately, neither of these solutions was very effective. The end result was that medical malpractice was expanded from wealthy doctors to the entire profession. Mal-occurrence became the new definition for malpractice. As advancements were made in diagnosis and/or treatment, so rose the claims of medical malpractice. The following chart by Tillinghast – Towers Perrin shows the dramatic increase in tort cost over the years since 1930.

US Tort Costs Versus US Gross Domestic Product
Luria has stated that, in his opinion, the increase in litigation can be traced to the advent of the Advocate Expert Witness. The legal profession now shops for an expert witness that can influence the courtroom. When a court makes an award in a malpractice suit, the plaintiff receives about half of the total award, the attorney about 40%, and the expert witness almost 2% of the award. Dr. Luria estimates that the total annual cost of malpractice litigation is around 500 million dollars, increasing at twelve per cent annually. Peer review of the testimony of expert witnesses may be one way to hold down the overall cost of litigation. Luria further cites the Daubert Definition of Good Science which looks at: (1) evidence based on a testable technique, (2) a theory that has been peer reviewed, (3) a known error rate, (4) a standard control technique, and (5) evidence that the underlying science has been generally accepted by a relevant scientific community. Furthermore, the Federal Judicial Center, in looking at the foremost problems with expert testimony, reports that experts often lose objectivity and become advocates for the hiring attorney. These experts are excessively expensive, and the validity of their testimony may be questionable. The Center also cites that there is often conflict among hired experts and there are often varying levels of competence among opposing experts.

Dr. Luria concludes that federal and state legislation dealing with the issue of an acceptable expert witness among other expert witness issues may have a dramatic impact on the credible use of expert witnesses and bring a balance to good medical practice and medical litigation.