Circuit Court Judge Neil Thomas has helped develop a process designed to streamline medical malpractice cases in the courts and to weed out testimony from "experts" that is deemed invalid.
Judge Thomas was joined Wednesday afternoon by several prominent national figures, including the former mayor of Detroit, in unveiling a new alliance between doctors and lawyers called The Alliance.
At a press conference at the Chattanooga Theatre Centre, Judge Thomas said the process involves finding medical experts in contiguous states who will review proposed testimony of experts planning to testify in medical malpractice cases. He said the judge will then be in a position to rule on whether the testimony should be allowed.
He noted that "the relationship between the medical and legal professions has become increasingly acrimonious and as battles are fought in courtrooms across America, insurance and legal costs to resolve these disputes have spiraled out of control."
Judge Thomas was joined by Medical Society President Donald H. Chamberlain and Bar Association President Mike Alston to announce the alliance’s first pilot project initiative. Dr. Phil Pollock and Alan Cates, past presidents of the respective associations, were also key players in the formation of the Alliance.
The project evolves around Rules 702 and 706 of the Rules of Evidence, which govern the admissibility of expert testimony in civil cases and the ability of a trial judge to call an independent expert. The Alliance pilot program has developed a procedure for determining the qualification and credibility of potential expert witnesses in some medical malpractice cases.
Officials said, "The process will help a judge determine whether an expert’s opinion will be admissible at trial well in advance of the trial itself. The process does not favor either the plaintiff or defendant, but will rather help a trial judge, through the use of the independent expert from a neighboring state and suggested by a local a panel of doctors, to determine whether the expert called by either side should be able to testify. What is unique in the process is the combination of the Rule of Evidence with the panel of doctors."
Two national leaders in law and medicine came to Chattanooga to endorse the unique initiative. Dennis Archer, former Detroit mayor, Michigan Supreme Court Justice, and Immediate Past President of the American Bar Association, and Dr. Donald Palmisano, Past President of the America Medical Association and a surgeon who is an acclaimed expert on medical liability and patient safety, saluted the program, which was nearly two years in the making.
“As a judge, I saw first hand the impact the contentious relationships had on all parties involved and on the legal system itself,” said Judge Thomas. “So, in May 2004, I approached the Chattanooga-Hamilton County Medical Society and the Chattanooga Bar Association about trying to seek common ground and identify positive partnerships.”
He said the initiative establishes guidelines to ensure that expert witnesses in a trial are qualified to offer opinions about the medical questions at issue.
It works like this: A panel of neutral physicians at medical schools or other institutions, who are the recognized experts in the field of medicine in question, could be appointed by agreement of both sides to evaluate the scientific validity of the expert testimony that would be offered by both the plaintiff and the defendant physician. The panel would report to the judge if the testimony offered by either side’s witness was not scientifically valid. The goal of the project is to reduce the amount of time and money it currently takes for medical malpractice cases to get through the system. Cases where baseless testimony would be introduced could be dismissed by the judge and never be tried. The initiative is designed to reduce “hired gun” experts from offering unfounded scientific opinions, it was stated.
“The Alliance pilot program in Chattanooga may be the single most important work going on the country as is pertains to streamlining and unifying the medical and legal professions whose relations have remained so strained and counter-productive,” said Mr. Archer, who is now in private practice with Dickinson Wright, LLC, a Detroit-based law firm. “I think it will set leading edge benchmarks as well as critical and fair guidance for both plaintiff and defendant groups.”
Dr. Palmisano said he believes that The Alliance pilot program can discourage litigation that does not have a sound medical basis. He said, “I believe that some self-proclaimed experts will think twice about testifying if they know that their opinions may be examined by an independent expert with recognized expertise, rather than a trial judge who may not have the scientific background to know whether an expert’s opinion is scientifically based.
“My belief from the side of medicine is that this new program may deter frivolous or speculative cases from going to court. While we face significant problems that call for medical liability reform, this is an important initiative.”
A. Bernard Ackerman, M.D., President of the Coalition and Center for Ethical Medical Testimony, said the organization he heads is designed to ensure ethical medical testimony. "Every citizen, physicians included, needs to testify truthfully under oath and physicians can be motivated to truth telling by knowledge that their testimony will be reviewed scrupulously by peers and then published verbatim."
Judge Thomas said that education is second key focus for The Alliance. Plans include seminars and workshops conducted by physicians and attorneys on topics such as establishing solid medical businesses, the mechanics of the legal system, reducing the risk of malpractice, reducing stress in a practice, and resolving scheduling issues more efficiently.
“This effort has been possible because a number of attorneys and physicians came together to work in harmony to resolve issues,” Judge Thomas said. “Our hope is that this process can transition into other industries that face a similar long, drawn out and expensive legal process.”
The Alliance Protocol
Step 1: In cases where expert medical testimony is to be given, the testimony of the plaintiff’s and defendant’s experts is submitted to the court at least one hundred and twenty days before trial.
Step 2: If the judge determines that the expert opinions are divergent, he or she can ask the Medical Society physician panel to identify several expert physicians in the specialty in question. The identity of the defendant physician will not be revealed.
Step 3: The Medical Society panel will submit the names of two or three appropriate expert physicians. The potential independent experts must: reside in a contiguous state, must be acknowledged experts in the medical field in question, and must have malpractice insurance through a different company than the defendant’s coverage.
Step 4: The court would select a witness from the Medical Society list and then submit that name to the attorneys involved in the case.
Step 5: If either attorney objects to the physician selected, a hearing would be held regarding that objection. After the hearing, the court will make the final determination on the selection of the expert witness.
Step 6: The independent expert physician would review the expert witness reports and a McDaniel hearing (on the admissibility of the testimony of the expert witnesses) would be scheduled sixty days before trial.
Step 7: Before the hearing, both parties can take the deposition of the expert witness at his or her office.
Step 8: The independent expert then testifies at the McDaniel hearing as to whether the plaintiff and defendant opinions satisfy the McDaniel factors. The trial judge then renders a ruling on the admissibility of the expert opinion.
Dennis Archer, former Detroit mayor, Michigan Supreme Court Justice, and immediate past president of the American Bar Association, speaks as Dr. Donald Palmisano, past president of the America Medical Association, listens.
- Photo2 by John Wilson