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Neurologists who testify in court are coming under tighter scrutiny by medical authorities who are seeking to weed out unqualified witnesses from the courtroom. In a move that has irked plaintiffs attorneys, the American Academy of Neurology recently revamped its 16-year-old guidelines regarding expert witness testimony by neurologists. The new guidelines were formally adopted earlier this year, but will not go into effect until Jan. 10, 2006. The AAN maintains that the guidelines, which call for tougher expert credentials and warn against doctors advocating for lawyers, are a response to several complaints by physicians about unqualified witnesses. But plaintiffs lawyers allege that the new rules are scare tactics designed to strip credentials from plaintiffs’ experts and keep doctors from testifying in medical malpractice cases. “I know what they’re trying to do here. They’re working to start trying to discipline plaintiff experts in med-mal cases. We’re the ones bringing claims against the doctors, and they’re trying to intimidate the doctors so they won’t serve as experts,” said Bruce Stern, who handles traumatic brain injury cases at the plaintiffs’ firm Stark & Stark in Princeton, N.J. ACT OF INTIMIDATION? Stern, past president of the Association of Trial Lawyers of America’s New Jersey chapter, said that while the guidelines themselves are fine, it’s their purpose that raises concerns. He claimed that the guidelines’ preamble, according to which a “neurologist who violates these provisions is subject to disciplinary action,” proves that the goal of the guidelines is to intimidate plaintiffs’ experts. “You’re never going to see discipline of a defense expert who violates these guidelines. Its really done to try to intimidate plaintiffs’ experts,” Stern said. But Murray Sagsveen, general counsel for the AAN, said that the new guidelines favor neither plaintiffs nor defendants, nor are they meant to be punitive. Their primary goal, he said, is to promote accurate testimony by neurologists, and to ensure that they have expertise in the area in which they claim to. “The goal is not to punish people. It’s to have accurate testimony so that the finder of fact is better able to determine what the truth is,” said Sagsveen, noting that the guidelines also warn against experts taking sides. “If you’re just another hired gun for one party or another to spin the truth a particular way, you’re not helping the process. A true expert witness calls the shots as they see them. Not as they’re paid.” Under the new guidelines, experts must prove they possess a number of qualifications, including an active clinical practice; expertise in the area in which they’re testifying, either through practice, research or published articles; and teaching experience in three of the last five years. They must also show how much of their time is devoted to practicing medicine versus acting as an expert witness for lawyers. The new guidelines also expanded a section concerning the conduct of the medical expert, stressing that testimony should be impartial and not tied to the outcome of litigation. Sagsveen said that violations of the guidelines could lead to sanctions ranging from a letter of concern to expulsion from the academy. Currently, he said the academy is investigating eight complaints of inaccurate witness testimony by neurologists. Defense lawyer Michael Shalhoub, who defends doctors and hospitals in medical malpractice cases at New York’s Heidell, Pittoni, Murphy & Bach, sees the new guidelines as a potential tool for weeding out bad witnesses. For example, he said, doctors with only M.D. degrees have long been allowed to testify in cases outside their field of expertise. Now lawyers have a better shot at getting such experts dismissed on cross-examination. “I would hope that the attorneys who are cross-examining doctors will be allowed to use these guidelines,” said Shalhoub, past chair of the Medical Liability and Health Care Law Committee for the Defense Research Institute, the leading voice of the defense bar. “And I would hope that it would make neurologists who are expert witnesses be more careful in what they say their expertise is,” Shalhoub said. On the advocacy issue, Shalhoub said that too often he has handled cases where plaintiffs’ experts blatantly advocate for the plaintiffs, using terms like “we” and “our position.”

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