The backlash was immediate after former Maryland Chief Medical Examiner David Fowler, MD, testified during the April trial of former Minneapolis police officer Derek Chauvin in the killing of George Floyd.
Fowler testified that although the cause of George Floyd’s death was sudden cardiac arrest during police restraint, he “fell back on undetermined” because there were other contributing factors, including his heart disease, drug use, and possible carbon monoxide poisoning.
Fowler broke with the local medical examiner, who had classified Floyd’s death as a homicide caused by a lack of oxygen that occurred while Chauvin pressed his knee on Floyd’s neck for more than 9 minutes. Commenters labeled Fowler a racist, a cop apologist, and a quack scientist.
Fowler’s career and credibility as a medical examiner are now being questioned. Former Washington, DC, Medical Examiner Roger Mitchell, MD, sent a letter signed by more than 400 doctors to Maryland’s attorney general, Brian Frosh, urging him to review all death-in-custody cases that occurred while Fowler was the state’s chief medical examiner (2002–2019). Frosh agreed and is appointing an expert review panel, which will issue a report. The petitioners also called for an investigation into Fowler’s medical license for possible ethical violations associated with death-in-custody diagnoses.
Fowler responded in comments to The Baltimore Sun, saying that “people need to do what they need to do.” But he defended his office’s work, noting that he was not solely responsible for autopsy conclusions. “There’s a large team of forensic pathologists, with layers of supervision, and those medical examiners always did tremendous work,” Fowler said.
If his medical license is restricted, suspended, or revoked, his ability to practice medicine would be affected. He could experience a decline in his consulting business and loss of income and future earnings. His hospital privileges could be revoked, and he could be dropped from insurance panels.
Dr Jeff Segal
“To do civil trials, you need an active license and to be board certified in your specialty. If you’re someone who hasn’t operated in 5 years, you won’t be credible on the witness stand,” says Jeff Segal, MD, JD, founder and president of Medical Justice Services, Inc, which helps doctors with problems related to medical malpractice.
James Gill, MD, president of the National Association of Medical Examiners (NAME), to which Fowler belongs, and who is a past president of the organization, says, “Professional medical experts should be credible and be seen as credible. If a person’s reputation is damaged, fairly or unfairly, they may no longer be seen as credible.”
Forensic pathologists can disagree and make unpopular determinations, and they can face criticism and pressure because of those determinations, says Gill. A survey by NAME showed that more than 70% of the forensic pathologists who responded to the survey had experienced pressure intended to influence their findings, and many experienced negative consequences as a result. “Political pressure came in the forms of verbal and/or written communications, threats, termination, intimidation, media exposure, and legal actions,” says Gill. He warns that this pressure could have a chilling effect on expert witnesses’ willingness to testify in the future.
But in Fowler’s case, it was another medical examiner and 400 doctors who called for an investigation into past death-in-custody cases that Fowler oversaw, which Gill said is unprecedented.
Did Fowler Fail to Follow Standard Practice?
Fowler was criticized by Mitchell and the other doctors for not following standard practice. They described his opinion that Floyd’s manner of death should be certified as “undetermined” as “outside the standard practice and conventions for investigating and certification of in-custody deaths.”
They also criticized Fowler for suggesting that carbon monoxide poisoning could have contributed to Floyd’s death. “The cause of death statement of any individual should be an injury, disease, or combination thereof, reached to a reliable degree of medical certainty. We believe the unsubstantiated opinion that carbon monoxide exposure may have contributed to the death of George Floyd is far outside that standard and is grounds for an immediate investigation into the practices of the physician as well as the practice of the Maryland State Office of the Chief Medical Examiner (OCME),” say the petitioners.
The American Medical Association recommends in its guidelines for expert witnesses that their testimony reflect current scientific thought and standards of care that have gained acceptance among peers in the relevant field.
For example, “when expert witnesses describe the standard of care, it is what most doctors would do or say in similar circumstances. If you’re the only doctor holding that opinion, it’s not the standard of care,” says Segal.
Expert witness testimony is considered opinion, but it should be based on what’s written or observed by others, says Louise B. Andrew, MD, JD, who is a leader in the American College of Emergency Physicians and the American Medical Association and is a Medscape Business of Medicine blogger. “You need good data and all the data to render an opinion,” Andrew said.
The Chauvin defense team recruited Fowler to testify as well as to review the evidence and submit a written report before the jury trial began. Fowler is a consultant with The Forensic Panel, a multidisciplinary group of forensic experts based in New York.
“Unlike other witnesses, he did not approach them,” says Michael Welner, MD, a psychiatrist who chairs The Forensic Panel. “He agreed to take on the case only if he undertook his work as a collaboration within The Forensic Panel and its rigorous oversight,” Welner told The Baltimore Sun.
Fowler was recommended to Welner and was vetted as a “preeminent forensic pathologist.” Fowler’s work since then has been “exemplary — ethical, sober, intellectually curious, honest, fair-minded,” said Welner.
Medical Societies Can Get Tough With Expert Witnesses
Most physician expert witnesses testify in civil cases, such as cases involving medical malpractice, workers’ compensation, and personal injury. When they testify in medical malpractice cases, it’s usually about whether the physician being sued met the standard of care for that specialty.
Some defendant doctors are “outraged by the quality of the expert witness testimony,” says Segal. But they can’t sue the expert witness for defamation because testimony is legally protected as privileged information, according to Segal.
However, professional societies can discipline members who violate their ethics policies and expert witness guidelines. The American Medical Association has urged state and specialty societies and medical licensing boards to set high standards for medical witnesses so that expert testimony is subject to the same standards of professional conduct expected of physicians in other aspects of medicine.
Several medical societies, including those representing emergency physicians, pediatricians, neurologists, surgeons, ophthalmologists, cardiologists, radiologists, and obstetricians/gynecologists, have set up a confidential peer-review process for member complaints about expert witness testimony.
The American Association of Neurological Surgeons (AANS) has been a pioneer in defining and enforcing expert witness rules. It established a Professional Conduct Program in 1983 to review complaints from members about alleged violations of its code of ethics or expert witness guidelines. The most common allegation from a review of 59 complaints between 1992 and 2006 was that testimony misrepresented the standard of care in medical malpractice cases. Nineteen complaints (32%) were dismissed, but 40 (68%) resulted in sanctions that ranged from censure to expulsion from membership.
Suspensions and expulsions must be reported to the National Practitioner Data Bank. Reports are available to state licensing boards, hospitals, health plans, and other healthcare entities interested in hiring or engaging with a practitioner. In some instances, organizations are required to query information in the reports before engaging with a physician. Once a report is entered into the database, it remains there permanently unless a practitioner is successful in having it retracted through a dispute resolution process.
AANS also posts disciplinary actions and the names of sanctioned members online in the AANS Neurosurgeon. The AANS Professional Conduct Program has survived several legal challenges by sanctioned members and has prevailed in court.
A landmark case, Austin v. AANS, affirmed the association’s role in disciplining members who testify as expert witnesses. The Professional Conduct Committee concluded and the board agreed that Detroit neurosurgeon Donald Austin, MD, engaged in inappropriate and unprofessional testimony as a plaintiff’s expert in a medical malpractice case, and his membership was suspended for 6 months.
Austin sued the AANS in the US District Court for the Northern District of Illinois, alleging that he was deprived of due process, a charge he later dropped, and that the AANS program violated public policy by discouraging physicians from testifying for plaintiffs in professional liability cases.
Austin alleged that the AANS’s unjustified and unfair actions had cost him a lot of money in expert witness fees, because the disciplinary charges made him less attractive as an expert witness. “Who, after all, wants an expert who has to acknowledge that he was suspended from his professional association for ethical violations he was found to have committed as an expert witness?” wrote District Judge Elaine E. Bucklo in her 2000 opinion.
The judge ruled in favor of the AANS, and the Seventh US Circuit Court of Appeals affirmed the decision on appeal, owing to unsubstantiated claims by Austin that included his experiencing a disastrous loss of income. Despite his suspension from AANS, Austin continued to testify extensively as an expert witness in medical malpractice cases.
Although his income from testifying fell 35% from the more than $220,000 a year before the suspension, the US circuit court judges wrote that it was still a “healthy $77,000 ― and this is merely as it were Dr. Austin’s moonlighting income, income from a sideline to his primary profession, which is that of a neurosurgeon.”
The judges also affirmed that Austin’s testimony is a type of medical service and is subject to professional regulation. In his affirming opinion, Chief Judge Richard Posner praised the AANS Professional Conduct Program as providing a public service, stating that “this type of professional self-regulation furthers, rather than impedes, the cause of justice,” according to the AANS Neurosurgeon.
Medical Boards Sanction Expert Witnesses
A handful of state medical boards have disciplined physicians on the basis of their expert witness testimony. The sanctioned physicians have sued the boards in court. Those courts have upheld some boards’ decisions and have overturned others. In a 1997 appeal, the Washington State Supreme Court confirmed that the State Board of Psychology could discipline a member who allegedly failed to meet professional ethical standards when he testified in several child custody cases.
The court said witness immunity did not extend to professional disciplinary hearings, according to a published record of the case.
However, in 2002, the North Carolina Medical Board disciplined a neurosurgeon by revoking his medical license for giving improper expert witness testimony in a medical malpractice suit. When he initially appealed, the court questioned the board’s disciplinary authority under the NC Medical Practice Act, and the board changed his license revocation to a 1-year suspension. When the neurosurgeon appealed that suspension, the state supreme court reversed the medical board’s decision on the grounds that the expert had rendered his opinions in good faith.
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