Purpose
To examine the relative qualifications of expert witnesses testifying on behalf of plaintiffs vs defendants in ophthalmology malpractice litigation.
Design
Correlational and descriptive study; analysis of expert witness and physician demographic data available on several databases.
Methods
The Westlaw legal database was searched for ophthalmologist expert witness testimony from January 2006 to June 2014. Physician demographic data were used as the main outcome measures, including length of experience, scholarly impact (as measured by the h-index), practice setting, and fellowship training status and were obtained from state medical licensing board sites and online medical facility and practice sites. H-indices were obtained from the Scopus database.
Results
Defendant and plaintiff expert witnesses had comparable mean years of experience (32.9 and 35.7, respectively) ( P = .12) and scholarly impact (h-index = 8.6 and 8.3, respectively) ( P = .42). Cases tended to resolve on the side of the expert witness with the higher h-index ( P = .04). Significantly higher proportions of defendant witnesses were in academic practice ( P < .05) and underwent fellowship training ( P < .001).
Conclusion
Ophthalmologist expert witnesses testifying for both plaintiffs and defendants had over 30 years of experience and high scholarly impact. Practitioners testifying on behalf of plaintiffs were statistically less likely to work in an academic setting and have subspecialty training. Scholarly impact of expert witnesses appeared to affect trial outcomes. Surgical societies should stringently police for appropriate expert witness testimony given by both plaintiff and defense experts in malpractice litigation.
Medical malpractice litigation contributes to rising health care costs in the United States (US). The US Department of Health and Human Services (HHS) reports that Americans spend far more per person on the costs of litigation than any other country in the world. The growing threat of malpractice litigation continues to add to malpractice premiums and the practice of defensive medicine—tests or procedures ordered by physicians to protect against the risk of being sued.
The jury is the trier of fact in the courtroom, deciding the facts of a case, the issue of malpractice, and the monetary amount awarded. The expert witness is typically the neutral character whose testimony is provided to help the jury make those decisions. Many jurisdictions require that if the subject in question is so distinctly related to a science or profession that the information relating to the issues at hand are beyond the knowledge of the average layperson, then expert testimony will be required to establish the standard of care and issues relating to causation.
In the US, virtually all medical liability litigation involves the testimony of medical experts, chosen by the plaintiff and defendant to explain their interpretation of facts and the application of those facts to the standard of care. The roles of the expert witness include interpreting the medical terminology and testimony for the jury, providing an opinion on the standard of care, and offering an explanation of the injury sustained in terms of such factors as severity, permanency, and ramifications. The most important role of the expert witness is to provide an honest opinion as to whether the breach of duty was the direct or proximate cause of the plaintiff’s injury.
The Federal Rules of Evidence on Expert Testimony state that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The general qualifications of an expert witness are defined similarly in every state—the physician should possess a requisite amount of skill, knowledge, experience, and expertise. However, because these qualities are difficult characteristics to measure directly and objectively, this definition has led to some skepticism about expert testimony.
The topic of expert witness testimony has been a contentious subject for many years. In an 1893 address, Professor Charles Himes noted that expert witnesses “are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is in many instances the result alone of employment and the bias growing out of it.” Other proponents of this opinion who wish to expose such bias believe that professional experts need to be vigorously cross-examined about such things as the amount of fees they are receiving for their service, how often they provide testimony in similar cases, and how much income per year is derived from providing testimony.
According to the American Academy of Ophthalmology (AAO) Expert Witness Testimony Guidelines, the expert’s testimony is often the pivotal factor in the medical tort process. The purpose of this study is to compare the relative qualifications of plaintiff and defendant expert witnesses involved in malpractice litigation in ophthalmology. Information regarding years of physician experience, scholarly impact, fellowship training status, and involvement in medical education were used to assess potential quality differences in the expert witnesses. To our knowledge, this is the first published study analyzing expert witness testimony in ophthalmology malpractice litigation.
Subjects and Methods
This study design was a correlational and descriptive study. The study adheres to the tenets of the Declaration of Helsinki and qualifies as exempt status per the “nonhuman subject research” protocol established by the Rutgers New Jersey Medical School Institutional Review Board, New Jersey Medical School, Newark, New Jersey, USA.
The Westlaw legal database (Thomson Reuters, New York, New York, USA) is a search engine often used by lawyers to obtain access to primary publications, including both federal and state cases. It has also been used to conduct analyses of medical malpractice lawsuits pertaining, but not limited, to otolaryngology, urology, psychiatry, oculoplastic surgery, and plastic surgery. In this study, the database was searched for malpractice lawsuits from January 2006 to June 2014 in which ophthalmologists served as expert witnesses. Owing to the ever-changing state of malpractice litigation secondary to ophthalmologic technical advances and relatively frequent amendments to malpractice law, only recent cases tried within the last 8 years were used. The terms medical malpractice AND ophthalmology OR ophthalmologist were used in a Boolean search to derive a preliminary case list. All search results that referenced malpractice litigations but that were not themselves malpractice lawsuits were excluded. Duplicate lawsuits were also excluded. The names of ophthalmologists providing expert testimony were recorded from the remainder of cases.
A Google search was conducted for each expert witness, using his or her name and specialty as Boolean search terms (ie, Dr Jane Doe Ophthalmology ). Information regarding graduation date from medical school, fellowship training status, and position as a faculty member at an academic university was obtained from private practice websites, staff listings on medical facility and hospital websites, and faculty listings on academic departmental websites. Medical school graduation date was more readily available than residency or fellowship graduation date on these websites; thus, graduation date from medical school was used in this study as a measure of experience.
The h – index calculator from the Scopus database ( www.scopus.com ) was used to evaluate the scholarly impact that each expert witness had within ophthalmology. The h-index uses both works published by a particular author and publications that cite said author’s work to determine his or her productivity and academic contribution. Scopus takes into account all article citations made after 1995 when calculating an author’s h-index. For the experts who had no publications after 1995, they were assigned an h-index of 0 to be consistent with the method used to calculate all other expert h-indices. When search results yielded multiple authors with the same name (owing to common last names, ie, Smith or Brown ), practice location, association with a particular department, and publications in ophthalmology journals were used to certify selection of the proper physician for analysis. All data were collected in June 2014.
Statistical Analysis
A Student t test was used for comparison of normally (symmetric) distributed continuous variables. Mann-Whitney U tests were used for comparison of asymmetric (nonparametric) continuous data. The threshold for statistical significance was set at P < .05. Pearson χ 2 analysis was used for comparison of categorical data. Microsoft Excel (Redmond, Washington, USA) was used for statistical calculation.
Results
Initial results from the Westlaw database using the search terminology described above produced 438 unique malpractice jury verdict reports since January 2006. Of these, 98 cases involved ophthalmologist expert witnesses. From these trials, there were 70 ophthalmologist defense expert witnesses and 74 plaintiff expert witnesses. There were several ophthalmologists that served as expert witnesses in multiple trials, so overall there were 66 unique ophthalmologist defense expert witnesses and 66 unique plaintiff expert witnesses. Defense expert witnesses had fewer years of experience (mean ± SD, 32.9 ± 10.1 years; range, 13–51 years) than the plaintiff expert witnesses (mean ± SD, 35.7 ± 11.2 years; range, 10–58 years). This difference was not significant ( P = .12) ( Table 1 ). Amount of experience did not affect trial outcome; cases in which a defendant ophthalmologist expert had more experience than his or her plaintiff counterpart were resolved in the defendant’s favor 66.7% of the time, whereas cases in which a plaintiff ophthalmologist expert witness had more experience was resolved with a plaintiff verdict 64.3% of the time (Pearson χ 2 test, P = .90).
| Plaintiff | Defendant | P Value | |
|---|---|---|---|
| Mean experience, y | 35.7 | 32.9 | .12 |
| Mean h-index | 8.3 | 8.6 | .42 |
| Academic practice, % | 56.8 | 75.7 | .01 a |
| Fellowship trained, % | 60.8 | 85.7 | <.001 a |
Scholarly impact was determined using the h-index. The h-index was obtained for 98 of the ophthalmologists (49 defense and 49 plaintiff expert witnesses) included in this study. The remaining ophthalmology expert witnesses did not have publications after 1995. The h-index of defense expert witnesses was only slightly higher (mean ± SD, 8.6 ± 10.3; median, 5.5) than that of plaintiff expert witnesses (mean ± SD, 8.3 ± 10.3; median, 3). This difference was not significant (Mann-Whitney U test, P = .42) ( Table 1 ). Cases in which the defendant expert witnesses had a higher h-index than their plaintiff counterparts were resolved in the defendant’s favor 72.7% of the time. Similarly, cases in which the plaintiff ophthalmologist expert witnesses had a higher scholarly impact than their respective defendant witnesses were resolved in the plaintiff’s favor 75% of the time (Pearson χ 2 test, P = .04).
Of the ophthalmologists serving as defendant expert witnesses, 75.7% are full-time faculty in an academic ophthalmology department. This proportion was significantly higher than the 56.8% of plaintiff expert witnesses serving in such a capacity (Pearson χ 2 test, P < .05) ( Table 1 ). Evaluation of fellowship training status revealed that 85.7% of the defense expert witnesses had confirmed postresidency fellowship training, a statistically significant higher proportion than the 60.8% of the plaintiff expert witnesses (Pearson χ 2 test, P < .001) ( Table 1 ).
The number of ophthalmologists testifying in multiple cases on behalf of the same side was analyzed. The number of experts testifying on behalf of plaintiffs in 2 cases was 7; the number testifying in 3 cases was 2. The number of experts testifying on behalf of defendants in 2 cases was 6; the number testifying in 3 cases was 2.
Results
Initial results from the Westlaw database using the search terminology described above produced 438 unique malpractice jury verdict reports since January 2006. Of these, 98 cases involved ophthalmologist expert witnesses. From these trials, there were 70 ophthalmologist defense expert witnesses and 74 plaintiff expert witnesses. There were several ophthalmologists that served as expert witnesses in multiple trials, so overall there were 66 unique ophthalmologist defense expert witnesses and 66 unique plaintiff expert witnesses. Defense expert witnesses had fewer years of experience (mean ± SD, 32.9 ± 10.1 years; range, 13–51 years) than the plaintiff expert witnesses (mean ± SD, 35.7 ± 11.2 years; range, 10–58 years). This difference was not significant ( P = .12) ( Table 1 ). Amount of experience did not affect trial outcome; cases in which a defendant ophthalmologist expert had more experience than his or her plaintiff counterpart were resolved in the defendant’s favor 66.7% of the time, whereas cases in which a plaintiff ophthalmologist expert witness had more experience was resolved with a plaintiff verdict 64.3% of the time (Pearson χ 2 test, P = .90).
