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Comment and Controversy

Needed: An unbiased way to assess expert testimony

January 2008 · Vol. 20, No. 01
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“An idea takes root: Hold those expert witnesses accountable,” by Aaron S. Kesselheim, MD, JD (November)

Although I am entirely sympathetic with the premise of Dr. Kesselheim’s article—that expert witnesses should be held accountable for their statements—this idea is not taking root. Why not? Because holding experts accountable is done in the worst possible way and, sometimes, for the worst reason: getting even.

The article describes three cases in which an expert witness retaliated or succeeded in negating or reversing efforts to hold them accountable for their testimony. The result? All three cases were effectively derailed; it was never definitively determined whether the testimony was objective and nonpartisan.

I would be the first to agree that medical societies should have authority over unethical conduct by physicians. But when it comes to judging the behavior of expert witnesses, they need to demonstrate objectively—even quantitatively—that a preponderance of evidence indicates that the expert rendered a partisan opinion with the intent to misinform a jury. I have described a way to accomplish this goal in a number of articles.1-3

Frankly, I don’t care much about disciplining experts. I care more about justice and about reducing the total cost of claims for a malpractice carrier. Tort reform reduces this cost by 12% at most, whereas the methodology described in these articles can lower it by at least 28%.1-3

Howard N. Smith, MD, MHA
Washington, DC


1. Smith HN. Model evaluating the validity of expert testimony in medical liability cases. J Leg Med. 2005;26:207-231.

2. Smith HN. Physicians, heal thyself: an alternative strategy for solving the malpractice crisis. Contingencies. 2005; May–June.

3. Smith HN. Defeating the malpractice crisis with standardized review of expert opinions. Physician Exec. 2005;31(May–June):24-31.

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