08/25/2005    Howard Lazar, DPM

ACFAS Issues Expert Witness Standards

RE: ACFAS Issues Expert Witness Standards
From: Howard Lazar, DPM

In Michigan, a podiatric expert witness must
have been practicing podiatry at the time of the
alleged act of malpractice.
I have not been able to read the ACFAS’ Expert
Witness Testimony Standards or Expert Witness
Affirmation Statement, as they are accessible
only to ACFAS members. Dr. Block capsulized
them: "[t]he real issue is, ‘should a DPM who
has never performed a particular procedure
testify for or against another DPM?’", and
expressed his belief the answer is "no."
I disagree with that philosophy. If we accept
that, we might as well posit that one is not
qualified to offer an opinion on the judgmental
or surgical error of another if he has not made
the same mistake. What if the procedure itself
is the error? For example, one need not have
performed a hallucal amputation to validate the
appropriateness of that procedure when performed
in the presence of gangrene, or to deny its
appropriateness when performed for ablation of a
fungal nail.

On each patient encounter, each of us should not
only meticulously examine the patient but also,
with a high degree of introspection, evaluate
our competency to treat the problem. Similarly,
we should each evaluate our own competency to
offer probative evidence (testimony) as an
expert witness in a particular case. That
competency need not necessarily rest on personal
experience with the specific procedure in
question, but on the broad base of knowledge we
are expected to have before we get to the
surgical table.

One need not have performed a particular
procedure to proffer a compelling argument
regarding conformity with the standard of care
in the selection and execution of that
procedure. We have all seen perfectly executed
but inappropriately selected procedures, and
poorly performed but appropriately selected
procedures, resulting in deformities and
disabilities. If we can recognize those events,
and can articulate a reasonable clinical basis
for our conclusions, I believe we are competent
to provide expert witness testimony in such
cases.

Howard Lazar, DPM, Bloomfiled Hills, MI
howardlazar@comcast.net

Editor's comment: Without parsing words, the
clear intent of witness
standards is, for example, to prevent a DPM who
has never performed
rearfoot surgery to testify that another DPM
improperly performed a
triple arthrodesis. Obviously any determination
must be made on a
case-by-case basis.

The imposition of expert witness standards by a
number of
professional organizations was not prompted
by "marginal" testimony,
but rather by "outrageous" testimony. If no
steps are taken to
prevent such testimony, malpractice premiums
will continue to rise
and all of us will suffer.

Other messages in this thread:

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08/24/2005    Carlos Montes, Jr., DPM, MS

ACFAS Issues Expert Witness Standards

RE: ACFAS Issues Expert Witness Standards

Being ABPS certified and a Fellow of ACFAS do
not guarantee you are an "expert witness." For
example, I had one malpractice case brought
against me. The so-called "expert witness" was
Steven Boc, a former Chairman of Surgery and
residency director from TUSPM. It was difficult
for me to sit through his testimony and hear the
downright ridiculous statements he made.

He testified that the surgery I had performed
was the direct cause of her slipping and falling
down some stairs two years after the procedures
because I had caused a "biomechanical" imbalance
in her gait which also attributed to her back
complaints. She admitted she had never fallen
before or since. This “expert” was straight-
faced and ended each sentence "with all medical
probability."

I spent one week out of my office defending
myself. It took 25 minutes for a jury to decide
the case in my favor. The plaintiff's lawyer
would never have been able to bring this case
against me without this "expert witness"
affidavit that I had breached standard of care.
This so-called “expert” is making quite a bit of
cash every year "reviewing" records. I believe
these types of fellows should be scrutinized by
our professional organization, the APMA, and
sanctions should be enforced.

Carlos Montes, Jr., DPM, MS, W. Melbourne, FL,
Cimontesjr@aol.com

Editor’s comment: Your case is perfect example
of the value of the ACFAS Guidelines. Imagine if
the defense attorney could present evidence that
the “expert” had been sanctioned by ACFAS for
false or unsubstantiated testimony. We hope and
believe that these scenarios will soon happen.

The APMA has also passed such guidelines, and
now it up to APMA state components and
affiliated and related groups to enforce these
guidelines. Dr. Boc is a member of both ACFAS
and the Pennsylvania Podiatric Medical
Association, so sending each a complaint,
accompanied by Dr. Boc’s sworn testimony could
result in sanctions against him.

PM News welcomes copies of egregious sworn
testimony by experts, and have already posted
Kevin Smith, DPM’s deposition on our webpage.
Expert witness testimony is the subject of our
September PM editorial.

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08/23/2005    Daniel Alan Chaskin, DPM

ACFAS Issues Expert Witness Standards

RE: ACFAS Issues Expert Witness Standards

Regarding the standards that were developed for
someone to be an expert witness, so long as the
jury has the full disclosure of someone’s
credentials I believe DPM’s may still be
qualified to be an expert witness even if they
are not engaged in the active practice of foot
surgery. For example to do so I believe would
possibly discriminate against someone that is
disabled and unable to actively practice foot
surgery yet perfectly be competent and
knowledgeable at being an expert witness
regarding foot and ankle surgery.

Daniel Alan Chaskin, DPM, Ridgewood NY,
DAC111113@aol.com

Editor’s comment: The issue is more of an
ethical one than a legal one because most courts
will allow any DPM to testify in a malpractice
trial.
The real issue is, “should a DPM who has never
performed a particular procedure testify for or
against another DPM?”

We believe the answer is “no” and we commend the
ACFAS for adopting standards designed to promote
the integrity of the profession and the judicial
process.

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08/22/2005    Lloyd S. Smith, DPM

ACFAS Issues Expert Witness Standards

RE: ACFAS Issues Expert Witness Standards

I am curious whether a podiatrist would qualify
as a foot and ankle
expert based on the standards adopted by ACFAS?
We are all podiatrists
and sometimes the distinctions set by our own
organizations do our
profession a disservice and, in fact, harm our
profession.

Lloyd S. Smith, DPM, Immediate Past President,
APMA,
lssmith@apma.org

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08/21/2005    ACFAS

ACFAS Issues Expert Witness Standards

ACFAS Issues Expert Witness Standards

Following in the steps of other large national
medical specialty societies, the ACFAS Board of
Directors has approved ACFAS Standards for
Expert Witness Testimony and an accompanying
Expert Witness Affirmation Statement. These
voluntary standards and statement were developed
in conjunction with the ACFAS Professional
Relations Committee, which has worked on this
project for well over a year. Both the standards
and the statement can be found at www.acfas.org.

• The foot and ankle surgical expert witness
shall evaluate the medical condition and care
provided in light of generally accepted practice
at the time, place and in the context of care
delivered.

• The foot and ankle surgical expert witness
shall provide evidence or testify only in
matters in which he or she has relevant clinical
experience in the areas of medicine that are the
subject of the proceeding.

• The foot and ankle surgical expert witness
shall be engaged in the active practice of foot
and ankle surgery.

In addition, all ACFAS members will be asked to
sign the accompanying Affirmation Statement
formally recognizing their responsibility to act
professionally when offering their expertise in
legal proceedings. It is foreseeable that ACFAS
members could be questioned in future legal
proceedings as to whether they voluntarily
signed the statement and if not, why not. ACFAS
will make copies of signed statements, which
will be kept on file at headquarters and be made
available to law firms upon written request.

Source: ACFAS