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FMG Law Blog Line

Ethical Code Does Not Prevent Expert Testimony

Posted on: April 24th, 2017

By: Shaun Daugherty

In a recent, factually interesting decision by an Illinois Court of Appeal, a defense verdict in a dental malpractice case was overturned for a variety of reasons related primarily to the defendant’s expert’s use of skulls during his testimony. However, one of the side issues also piqued my interest. The case involved dental implants, and a treating oral and maxillofacial surgeon provided testimony that the dentist that placed the implants deviated from the applicable standard of care.

During cross-examination by the defendant’s attorney, the oral surgeon was confronted with G.1.08 of the American Association of Oral and Maxillofacial Surgeons’ Code of Professional Conduct titled “Fairness in dealing with colleagues” that reads: “Oral and maxillofacial surgeons who wish to serve as expert witnesses must not do so in cases for which they also served as one of the patient’s treating doctors.” The oral surgeon admitted that he was a treating doctor, but attempted to clarify that the code did not apply to the situation as the dentist that placed the implants was not a “colleague.”

The Illinois Court of Appeals addressed this line of cross-examination. While it was not the issue that formed the basis of the reversal, the court wanted to provide direction to the trial court for the retrial. Specifically, the three-panel opinion determined that the cross-examination was improper and should not have been allowed. The opinion indicated that only the Illinois legislature and the courts may determine the admissibility and proper scope of expert testimony in medical malpractice actions. The private accrediting bodies “may not attempt to thwart their members from testifying as expert witnesses against their colleagues by declaring such testimony to be a violation of professional ethics.” Therefore, the type of questioning was both irrelevant and in violation of public policy and should not have been permitted.

It is interesting because for years, I have had this particular Code of Professional Conduct used by opposing counsel in an attempt to quell the supporting testimony of treating oral surgeons in cases where I was defending the dental professional. Often, the oral surgeon would have expert opinions that the defendant met the standard of care, but this particular ethics consideration was brought to their attention in a pre-deposition meeting with the patient’s attorney, and they would decline to provide such testimony on the record. Thus, the Code of Ethics is being used as both a sword and a shield for expert testimony.

This decision, while not binding in other states, still provides sound arguments for the application of similar issues in our own backyard. Any qualified expert should be able to provide opinions that a medical provider met or deviated from the standard of care, even if they too provided care. The search for truth should not be restricted for either side by the use of an ethical rule as long as the testimony is from a qualified expert and is, in fact, the truth.

For more information, please contact Shaun Daugherty at [email protected].

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