Handling expert witnesses in court

In the not too distant past, it was commonplace for a medical doctor to be called as an expert witness in a chiropractic malpractice case. Only recently have courts begun to rule that M.D.s are not qualified to give testimony on chiropractic care -- any more than a D.C. is qualified to dispute the actions of a cardiologist.

That doesn't mean, however, that you'll never be up against an M.D. in court. A medical doctor can be called as an expert witness if the plaintiff can show that the D.C. was acting within the realm of medical practice.

If the D.C. was focusing solely on detecting and correcting subluxations, it would be nearly impossible for the plaintiff's attorneys to argue that an M.D. is qualified to give testimony. Subluxation correction is solely within the scope of chiropractic and M.D.s receive no training or education in it. However, if the D.C. was directly treating a medical condition -- anything from diabetes to bedwetting -- the opposition would have a case for bringing in an M.D. The treatment of disease, after all, is the definition of medicine.

That's why it's so important for doctors to educate patients adequately and have them sign a "Terms of Acceptance." In this way, it can be clearly demonstrated in court that they were not engaged in medical practice.

Yet, even in cases involving strictly chiropractic care, there is a good probability that the plaintiff will bring in at least one -- and often several -- chiropractic "expert witnesses" who will testify that your care was improper or did not meet standards of care.

Although many fine, respected and responsible D.C.s provide services as expert witnesses, there are others who make a hefty income from providing the testimony needed by lawyers -- like the chiropractic 'consultants' working with insurance companies to rubber stamp claim denials.

Being an expert witness has become a profession in itself, or a lucrative sideline job at the very least. "Many, many doctors earn a substantial income today by serving as professional expert witnesses," noted James Lewis Griffith, Sr., a malpractice attorney in Philadelphia in a Medical Economics article. "All you need to do is look at the ads taken out by these doctors in law-related journals."

Often, the doctors have little expertise to recommend them. They may have a series of "credentials" behind their name, or an impressive-sounding title at an organization or college, but they come to the courtroom with scant understanding of subluxation-based chiropractic. It's hard to believe the court would accept unqualified witnesses, or those whose testimony is inaccurate or outdated, but it happens every day in our justice system.

Dr. Marcia Angell, past editor of the New England Journal of Medicine, noted in her book, "Science on Trial," that "witnesses are considered experts on the basis of very broadly defined credentials ... and they needn't produce evidence from the literature to buttress their opinions, even when there are relevant studies in peer-reviewed journals. In the courtroom their opinions are the evidence."

It gets worse.

According to one medical reporter, "An expert witness in a malpractice trial looks straight at the jury and lies his head off. He inflates his credentials to the bursting point. He swears he's board-certified and has performed the operation in question hundreds of times. In fact, the expert has failed the boards three times and lost his hospital privileges long ago." While the doctor's lies might be exposed in cross examination, the information given before a judge or jury may already have damaged the defendant's case.

Another difficult expert witness to counter in court is what has become known as a "Mercy expert." These are D.C.s who use parts of the Mercy Guidelines ("Guidelines for Chiropractic Quality Assurance and Practice Parameters") to argue their case against non-medical chiropractic.

For instance, if the case revolves around efforts to correct subluxation by the use of regular spinal adjustments, a chiropractic expert witness for the plaintiff could quote from the Mercy Guidelines that: "To be a valid outcome measure, misalignments should theoretically reduce with therapy .... There are very few experimentally controlled studies indicating that manipulations/adjustments are the reason for changes in misalignments seen over time." (Chapter 10, Section III E.)

Although it is possible, during rebuttal, to demonstrate that the Mercy Guidelines have been widely rejected by the chiropractic profession, the jury may still be left with the impression that adjustments can't help subluxations.

The only way to dispute against such distorted testimony is to bring forward expert witnesses of your own, witnesses who can provide ample evidence of the validity of subluxation correction. Normally, your malpractice insurance company will work closely with your attorney to provide or arrange for reputable expert witnesses who can use subluxation-based "proof" -- such as the CCP Guidelines ("Council on Chiropractic Practice Clinical Practice Guideline Number 1, Vertebral Subluxation in Chiropractic Practice") -- to counter the Mercy arguments.

There is justifiable concern on the part of many D.C.s that their insurance companies will be hesitant to do so, since they were financial supporters of the Mercy Conference, and may use that document as their standard of care and underwriting criteria. It would be awkward, to say the least, for a company that funded the development and distribution of the Mercy document, or whose principles were involved in the actual writing of it, to allow expert witnesses who would dispute its findings.

For many doctors, the alternative is to obtain malpractice insurance through a program with no ties to the Mercy document, or to one such as Chiropractic Benefit Services which endorses the CCP Guidelines.

SOURCES: "Science on Trial: The Clash Between Medical Science and the Law in the Breast Implant Case," by Dr. Marcia Angell, 1996.

"How did it ever come to this?" by James Gray, Medical Economics, Oct. 19, 1998.