Sent to DJP megalist of state medical societies and specialty 
societies and leaders in Medicine.  Over 1560 on list.

DJP Update 11-3-2005 re: Late resolution on expert testimony

My last DJP Update of 10-26-2005 gave you the details of The Alliance project regarding expert witnesses.  Thanks to the doctors and 
lawyers in Chattanooga and especially to Judge W. Neil Thomas III for his leadership.

Hope we can get some additional state and specialty societies to co-sponsor.
I also was going to co-sponsor but AMA bylaws prevent AMA past presidents from doing so.  Alas!
However I will advocate for acceptance by the HoD.  Of course we first must get a recommendation by rules committee.

Because this Alliance was announced after the deadline for resolutions, it is hoped the rules committee will be kind to this resolution.  Anything that helps eliminate junk testimony advances our AMA goal of fixing the broken medical liability system.  If you desire to cosponsor, please send a note to AMA stating so.  
Send to:

Jon.Burkhart@ama-assn.org

Also, let me know by copying me.

Thanks!!
Travel with care.
Donald
Donald J. Palmisano, MD, JD
DJP@intrepidresources.com
312-560-0180

P.S. I will be staying with friends in Dallas and not at the hotel for the AMA Interim Meeting.  I can be reached by cell phone.
Now in San Francisco airport awaiting redeye to Dallas.  Will be at OSMAP meeting at 2PM Friday, 11-4-2005.

AMERICAN MEDICAL ASSOCIATION            I-2005
HOUSE OF DELEGATES            DALLAS


LATE RESOLUTION

SUBJECT:            Pilot Program on Independent Experts and Testimony in Civil Cases

INTRODUCED BY:            Louisiana Delegation


WHEREAS, on October 26, 2005 a joint announcement was made by the Chattanooga-Hamilton County Medical Society and the Chattanooga Bar Association of the formation of The Alliance, a new relationship between doctors and lawyers to address the increasingly acrimonious battles fought in courtrooms across America that are driving up the insurance and legal costs to resolve these disputes, and

WHEREAS, the joint announcement also included the launching by The Alliance of a national pilot  program to evaluate a protocol to 
address the issue of admissibility of expert testimony in civil cases and the ability of a trial judge to call an independent expert to determine if the proposed expert testimony is unscientific or false.  This project uses Rules 702 and 706 of the Tennessee Rules of Evidence;

WHEREAS, The Chattanooga-Hamilton County Medical Society believes that the pilot project may have merit in a limited category of 
medical malpractice cases when the presiding judge needs assistance in evaluating the validity of scientific evidence proposed to be 
offered at trial by the medical experts and

WHEREAS, the use of independent highly qualified physicians to ferret out proposed testimony which is extremely speculative or unfounded 
may help reduce the length and expense of some trials but is not considered a substitute for comprehensive “MICRA-type” medical 
liability reform in Tennessee and other states, therefore be it

RESOLVED, that our American Medical Association endorse the pilot program launched by The Alliance, established by the Chattanooga-
Hamilton County Medical Society and the Chattanooga Bar Association, to evaluate a unique protocol developed by Circuit Court Judge W. 
Neil Thomas, III and members of The Alliance.  The protocol, using Rules 702 and 706 of the Tennessee Rules of Evidence, addresses 
issues surrounding the admissibility of expert testimony in civil cases and the ability of a trial judge to call an independent expert, and be it further

RESOLVED,  that our AMA continue to oppose unscientific or false testimony and monitor the progress of the pilot program established 
by The Alliance in Hamilton County  to address issues surrounding rules of evidence in civil cases in the state of Tennessee.  The AMA 
evaluate the ongoing results of the pilot program and report to the House of Delegates on its progress, including recommendations 
regarding endorsement of the project’s protocol.

  ------------

Background info:


The Chattanooga-Hamilton County Medical Society and the Chattanooga Bar Association today announced a joint initiative that seeks to 
ensure that expert witnesses in a malpractice case are qualified to offer opinions about the medical questions at issue. The initiative was spearheaded by Circuit Court Judge W. Neil Thomas III.  Participating in a news conference to announce the initiative were: 
Medical Society President Donald H. Chamberlain, Bar Association President Mike Alston; former American Bar Association President 
Dennis Archer, former American Medical Association President Donald Palmisano, and Dr. Bernard Ackerman, President of the Coalition and Center for Ethical Medical Testimony.

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.  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.

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.

For more information about the initiative, contact Rae Bond at the Chattanooga-Hamilton County Medical Society, 423-622-2872.

Rae Young Bond
Executive Director, Medical Foundation of Chattanooga
Acting Director, Chattanooga-Hamilton County Medical Society
1917 East Third Street
Chattanooga, TN 37404
423-622-2872, ext. 3003 (phone)
423-308-1821 (fax)
423-313-6025 (mobile)
-----------

More details:



EMBARGOED UNTIL 1 PM 10/26/05
Contact:  Albert Waterhouse (423) 309-1250
                or Missy Acosta
(423) 643-4977
macosta@waterhousepr.com
-or-
Rae Young Bond
Medical Society
(423) 622-2872 or (423) 313-6025
-or-
Lynda M. Hood
Bar Association
(423) 756-3222 or (423) 488-3620

NEW GROUNDBREAKING ALLIANCE FOR LAW AND MEDICINE
Chattanooga Launches National Pilot Program

CHATTANOOGA, Tenn. * October 26, 2005 * 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.  Now a Hamilton County judge has spearheaded a new alliance between doctors and lawyers that seeks to change this course. Circuit Court Judge W. Neil Thomas III today joined 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.  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 today to endorse this 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 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."

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.

"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 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."

Others believe that The Alliance pilot program can discourage litigation that does not have a sound medical basis. Dr. Palmisano 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," said Dr. 
Palmisano. "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."

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," 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.