DJP 10-26-2005 Update: Effort to eliminate junk science in courtroom

(Sent to DJP megalist)

Thanks to Dr. Bob Bowers and Judge W. Neil Thomas III for inviting me to participate in this important initiative announcement in 
Chattanooga, Tennessee today.

Activities today included press conference, editorial board visit, and TV show.

As I repeated today in all of the activities:

"Junk science masquerades as the truth but it is a fraud and must be stopped.  Masquerade belongs at the Mardi Gras in New Orleans, not in 
the courtroom." DJP

This would be a good initiative for AMA to endorse at AMA Interim Meeting.  AMA has advocated since at least 1999 for judges to use the 
power they already have to keep junk testimony out of the courtroom.   The United States Supreme Court also approves of the judge eliminating such testimony.  I gave an AMA talk to a section meeting of the ABA in 1999 urging judges to screen out junk testimony.

Good ideas need champions and Judge Thomas is such a champion and he has earned the respect of the legal and medical community.

Another step forward in the quest for common sense and fairness in the courtroom.

Stay well.

DJP

Donald J. Palmisano, MD, JD

DJP@intrepidresources.com

www.intrepidresources.com



October 26, 2005

Doctors, Lawyers Create Credibility Test

By BILL POOVEY, Associated Press Writer

Doctors and lawyers — often natural-born enemies in the courtroom —  are joining forces in Chattanooga in an experimental effort to keep 
junk science and dubious malpractice cases out of court.

Under the program, judges presiding over malpractice cases will select an independent doctor from out of state to evaluate the testimony of potential expert witnesses and help decide well before trial whether those witnesses should be allowed to take the stand.

Hamilton County Circuit Judge W. Neil Thomas III started the pilot program and said the Chattanooga-area medical society and bar 
association have agreed to the rules.

Supporters hope that if it works in Chattanooga, the approach will spread.

BlueCross BlueShield Tennessee and the nation's largest disability insurer, Chattanooga-based UnumProvident, are listed among sponsors 
of the experiment.

Former Detroit Mayor Dennis Archer, president of the American Bar Association in 2003-04, commended Thomas for the effort, saying, 
"There are times when a judge needs additional assistance."

"The court has a responsibility to make sure we don't waste taxpayer money," he added.

Dr. Donald Palmisano of New Orleans, president of the American Medical Association in 2003-04, said, "Junk science has no place in 
the courtroom. It increases the cost of litigation."

The Tennessee Trial Lawyers Association was not involved in the program.  "We were never consulted," said the group's legislative liaison, Mary Littleton. "Where are the patients?"


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.