There have been many suggested solutions to the expert witness problem.
Most of these are defensive strategies that seek to reduce the availability of
plaintiff’s experts; they do not address the root problem of ambiguous medical
The best approach is to reduce the ambiguity in practice standards. While
courts will still require expert testimony, both judges and juries are very
deferential toward explicit standards of practice that are promulgated by
credible professional organizations. Since plaintiffs’ attorneys are aware of the
increased difficulty in proving a case against a physician who has followed
approved standards, standards lead to reduced litigation.
Most important, standards allow effective quality assurance review. This
reduces the legal risk to peer reviewers and improves the quality of care.
Standards are also critical in medical cost containment. Most standard-setting
efforts in the financial context have been directed at reducing unnecessary
care. As the pressure to reduce medical care costs increases, well-articulated
practice standards will be critical in ensuring that cost-containment efforts do
not deny patients necessary care. Without standards to back their decisions,
individual practitioners will not be able to resist third-party payer pressures to
reduce medically indicated care.
There are three impediments to standard setting in medical practice. The first
is the belief that setting a standard will inhibit innovation. While this may be
relevant in a medical research setting, innovation is much less significant in
routine medical care. Even in a research setting, rigid adherence to standard
protocols is fundamental to the controlled trials that advance medical science.
The second is resistance by medical malpractice defense lawyers. Defense
lawyers assert, correctly, that it is much more difficult to defend a physician
who violates an explicit practice standard. This ignores the reduced litigation
against physicians who do comply. It also ignores the long-term reduction of
negligent practice as the peer review process urges practitioners to follow
appropriate practice standards.
The third, and most important, impediment to standard setting is the Federal
Trade Commission (FTC). In its efforts to reduce anticompetitive practices in
medical care delivery, the FTC has discouraged professional standard setting.
While correctly recognizing that many professional standards are
anticompetitive, the FTC does not seem to recognize that this is the price of
professional self- regulation. Any rule that restricts marginal practitioners will
reduce competition. The fear of FTC enforcement actions has discouraged
professional societies from setting standards for practice. This has been most
evident in the reluctance to address entrepreneurial practices that encourage
patients to undergo unnecessary and vanity procedures. The FTC has focused
on reducing prices through competition, ignoring the problem of physicians’
and hospitals’ using the classic advertising technique of creating a demand for
unnecessary or inappropriate services.