ERBʼS PALSY: CONCEPTS OF CAUSATION

Characteristics of Physicians Who Frequently Act as Expert Witnesses in Neurologic Birth Injury Litigation

OBJECTIVE

Much debate surrounds physicians who testify in controversial types of medical malpractice litigation, but little is known about them. We sought to describe characteristics of physicians who frequently act as expert witnesses in neurologic birth injury litigation.

METHODS

Using jury verdict reports, we identified 827 cases between 1990 and 2005 involving birth-related neurologic injury to a child. Frequent expert witnesses were defined as those associated with more than 10 cases. From the verdict reports and other public data sources, we compiled case descriptions (injury type and severity, legal outcomes) and characteristics of the frequent witnesses (age, gender, board certification, academic publication record). We analyzed these characteristics by comparing witnesses with each other (plaintiff compared with defendant) and with nationally representative data.

RESULTS

Seventy-one frequent witnesses participated in 738 cases (89% of the sample), which paid 2.9 billion US dollars in compensation. Most (56 of 71) testified for one side in at least three fourths of cases, and 40% of cases were located outside the witnesses' home states. Frequent plaintiff witnesses had a higher median annual case rate than their defendant counterparts (2.9 compared with 1.9 cases, P=.002). They were also older (57.2 compared with 50.8 years, P=.007), less likely to have subspecialty board certification (38% compared with 95%, P<.001), and had fewer academic publications (5.0 compared with 53.5, P=.002).

CONCLUSION

A small cadre of physicians testifies in most neurologic birth injury litigation, and witnesses tend to act consistently for one side. Plaintiff witnesses have fewer markers of expertise than defendant witnesses. These descriptive and analytical findings may reflect suboptimal expertise or bias in physician expert testimony.