Expert Opinions Create Liability for Physicians

MANAGED CARE November 2006. ©MediMedia USA

Arthur Lazarus, MD, MBA

Recent court rulings in Kansas and Florida have reached different conclusions as to whether physicians who provide expert medical testimony in court are engaged in the practice of medicine. In Mississippi the issue is apparently moot, as the State Board of Medical Licensure recently adopted standards to regulate physicians who testify as expert witnesses.

My dictionary defines "practice" as repetitious behavior to acquire or polish a skill. As applied to medicine, it means the business of a physician or group of physicians. It is absurd to think that physicians who provide expert testimony in a courtroom are practicing medicine. A former mentor of mine remarked it does "violence" to the practice of medicine to think this way.

It is also absurd to believe that physicians who conduct utilization reviews within the confines of HMOs are engaged in practice, although the courts are divided on this issue as well. Such reasoning can only be explained in light of attempts by the medical profession to co-opt regulatory boards into punishing physicians who are openly critical of other physicians.

Rather than police expert physicians, medical boards should invest in resources to investigate clinically deficient physicians.

The issue of whether physicians may freely give medical opinions is also now being contested in the pharmaceutical industry, where at least two physicians are facing criminal prosecution for speaking "off-label." The rules seem clearer in the pharmaceutical industry. Discussing unapproved uses of products is generally acceptable in CME programs for the purpose of advancing science.

Even in promotional programs sponsored by drug companies, off-label discussions are permitted so long as the physician narrows his or her remarks to unsolicited questions posed by the audience.

Speakers should clearly advise the audience that the answer is outside the scope of approved labeling and that they are speaking from independent medical judgment. The danger zone is entered when physicians make false statements about a drug's unapproved use in order to get other physicians to buy it.

Bottom line

Physicians cannot rely on courts, drug companies, or HMOs to protect their freedom of speech. Their experience and knowledge form the foundation of all medical opinion.

Physicians need to be familiar with the scientific literature comprising the evidence base of medical practice and, when speaking on behalf of the pharmaceutical industry, they also need to be familiar with the limitations of the product and results of relevant clinical trials.

Anything less invites scrutiny and possible retaliation by other physicians or prosecution by the authorities.

Arthur Lazarus, MD, MBA, is senior director of clinical research for AstraZeneca Pharmaceuticals in Wilmington, Del. He is editor of MD/MBA: Physicians on the New Frontier of Medical Management (American College of Physician Executives, 1998). He can be reached by phone at 302/885-4542 or by e-mail at arthur.lazarus@astrazeneca.com [1]. His opinions are his own, not necessarily those of AstraZeneca or Managed Care.