Serving as an expert witness in a court of law necessitates the consideration of a number of ethical obligations that are rarely delineated by those who seek or provide such testimony. Because expert witness testimony can directly affect the standard of care that will be applied to future medical practice, providing such testimony can be considered to be within the realm of the practice of medicine. It should be undertaken with the same degree of integrity as the practice of medicine, and may be subject to the same scrutiny and regulation.
Because lay juries are generally not knowledgeable about medicine or other highly technical fields, courts in most states depend on expert witnesses to help them to understand and decide complex cases. To protect patients and physicians, and to uphold the standards of medical care, it is both morally and legally appropriate for physicians with sufficient expertise to testify in medical malpractice claims. Legal requirements for qualification as a medical expert witness vary significantly from state to state. The American Medical Association (AMA) and many specialty societies have established policies regarding expert witness testimony to guide their members in providing such service. Many of these policies, though not all, state that to act as an expert witness, at a minimum, a physician should be familiar with the applicable standard of care, and be in the active practice of medicine as of the date of the incident. Some require that the member be board certified or prepared in the specialty area involved in the claim. Some require that the member be willing to submit testimony for review by a committee of peers.
As an expert witness, a physician has a clear ethical responsibility to be objective, truthful, and impartial when evaluating a case on the basis of generally accepted standards of practice. It is unethical for experts to overstate their opinions or credentials, to misrepresent an unfortunate occurrence as malpractice, to offer false testimony, or to testify on any sort of contingency basic.
Reproduced here is the Expert Witness Policy adopted by the American College of Emergency Physicians in 2001.
Expert Witness Guidelines for the Specialty of Emergency Medicine
Approved by the ACEP board of directors August 2000. This statement replaces one with the same title approved by the ACEP board of directors in September 1995. This policy statement was originally approved by the ACEP board of directors in September 1990.
Expert witnesses are called on to assess the standard of care for emergency physicians in matters of alleged medical malpractice and peer review. Because medical expert witness testimony has demonstrated the potential to set standards of medical care, such testimony will be considered by the American College of Emergency Physicians (ACEP) to fall within the realm of the practice of emergency medicine. This testimony would therefore be subject to accountability by appropriate licensing authorities. Expert witnesses in the specialty of emergency medicine should meet the following criteria:
Be certified by a recognized certifying body in emergency medicine1;
Be in the active clinical practice of emergency medicine for three years immediately before the date of the incident2;
Be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine;
Abide by the following guidelines for an expert witness:
The expert witness should possess current experience and ongoing knowledge in the area in which he or she is asked to testify.
The expert witness should be willing to submit the transcripts of depositions and testimony to peer review.
It is unethical for an expert witness to accept compensation that is contingent on the outcome of litigation.
The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.2 The key to this process is a thorough review of available and appropriate medical records and contemporaneous literature concerning the case being examined.
After this process is completed, the expert's opinion should reflect the state of medical knowledge at the time of the incident.
The expert witness should review the medical facts in a thorough, fair, and objective manner and should not exclude any relevant information to create a view favoring the plaintiff or the defendant.
Expert witnesses should be chosen on the basis of their experience in the area in which they are providing testimony and not solely on the basis of offices or positions held in medical specialty societies, unless such positions are material to the witness’ expertise.
An emergency physician should not engage in advertising or solicit employment as an expert witness where such advertising or solicitation contains representations about the physician's qualifications, experience, or background that are false or deceptive.
Misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.2, 3
QUALIFICATION AS AN EXPERT WITNESS
When state law does not otherwise specify, the qualification of a witness as an expert is determined by the judge on a case-by-case basis. Judges have broad discretion in making such determinations. Although most are conscientious, judges are limited to hearing the testimony of those potential “experts” brought to them and to the jury by the parties to the case. Furthermore, questions posed to the expert must for the most part come from attorneys representing the party rather than directly from the judge (unlike France, where judges can appoint their own experts and question them directly). There is some movement toward court-appointed experts in our system, but not much thus far in the medical arena. Occasionally a judge may disqualify an expert, but this seldom occurs because of the potential for provoking a mistrial or appeal.
Expertise in the specialty in which the defendant is practicing should be the sine qua non of an ethical expert witness. Yet most juries and some judges do not know what constitutes expertise in a medical specialty. Expertise is appropriately established on the basis of knowledge of the field and relevant experience. Board preparation and current certification are the gold standards (though not the only) indicators of knowledge of the specialty. For several legitimate reasons (such as grandfathering into a new specialty), some experts are unable to certify in the specialty they practice, but could still be qualified to serve as experts by virtue of continuing medical education and study of relevant literature in addition to extensive practice. Rural areas may not have the luxury of board certified physicians in certain specialties, and therefore experts from the same pool would in all likelihood also not be board certified. Relevant experience is established by a period of active clinical practice beyond training, and particularly by practice during the time frame of the incident relative to the case. An ethical expert witness should be actively practicing within his field at the time of the incident involved in a claim in order to be aware of the actual applicable standard of care in effect as of that date.
ACEP’s Expert Witness Policy is in accordance with that of the American Medical Association and states: Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.
While it might seem reasonable that an expert who testifies against a physician in a case should be knowledgeable, experienced, trained, or certified in the specialty relevant to the claim, there are very few states in which the laws require this degree of qualification. This creates a significant vulnerability for such specialties as emergency medicine and family practice. Because emergency medicine and family practice are so-called “horizontal” specialties that encompass clinical problems and procedures that cross traditional specialty lines, specialists from a variety of fields have been allowed to testify as experts in numerous emergency medicine and family practice cases. By the same token, some emergency physicians and family practitioners have testified as experts in cases involving other specialties, despite a limited familiarity with the applicable standard of care in that specialty. Many physician expert witnesses have even testified as to the standard of care of other health care providers, such as nurses, technicians, and therapists, based on their observation of the practice of these providers, rather than any specific knowledge, training, or experience.
As a general rule, an expert witness should be a member of the same profession and specialty as the defendant, unless the defendant was clearly practicing outside the confines of his specialty. This is the law in North Carolina and California, as well as some other states. When the law allows for another type of specialist to act as an expert witness and evaluate procedures performed by a defendant, it is appropriate that the testifying expert perform similar procedures in a clinical setting that is (at least some of the time) similar to that of the defendant. For example, an operating room cannot be compared to the facilities available in a typical emergency department or medical office, and thus standards can differ significantly depending on where a procedure is performed.
OBJECTIVITY
The primary responsibility of an expert witness must always be to the truth.1 Full discernment of the truth means that before forming any opinion, the physician must have a thorough knowledge of all aspects of the case. Ideally, before reviewing the records the expert witness should know nothing about the case except for the broad subject matter and filing deadlines. The expert should request additional records, original documents (such as X-rays), and any other relevant information even if it is not volunteered by the attorney.
Analysis and testimony should reflect knowledge of applicable and generally accepted standards of care. Importantly, the medical expert must be aware of and apply the standard of care (including any regional variations in practice and alternative treatments) that existed at the time of the incident that gave rise to the claim. The location and capabilities of the facility in which the incident occurred must also be taken into account.
The standard of care is frequently defined as “the degree of care that would be rendered by a reasonably competent physician practicing under the same or similar circumstances.” This standard is apparently not well understood by many expert witnesses, and attorneys do not often define this concept clearly for their experts. A reader-response series in a popular monthly emergency medicine publication2 illustrates that there is a wide divergence of opinion in what practicing emergency physicians believe to be the standard of care applicable to any given case scenario. One expert who is unusually candid admitted privately that although informed by a number of sources, the standard of care that she applies in any given case is essentially “made up,” because nowhere is it clearly defined.
An expert must also be aware of prevailing legal standards in the community where a case is being tried. If the locality rule applies rather than a national standard in a given jurisdiction, experts have an ethical obligation to be familiar with any applicable local standards, and to be prepared to explain how they have gained this knowledge.
Clinical policies and guidelines have been developed by specialties to address many medical conditions — although most have been carefully worded to make clear that they are “guidelines” and not standards of care. While this nomenclature may appear to the legally trained practitioner to be designed to avoid legal liability, medically trained practitioners know that a clear-cut standard of care for any condition is extremely rare, given the variability of human clinical presentation and response. It is often said in jest in the medical community — and often borne out in fact in the courts — that “the standard of care is established the first time someone is successfully sued for not doing something.” The textbook example of this type of setting is Helling v Carey (83Wn.2d 514,519 P.2d 981), a 1974 Washington Supreme Court case in which, based on their understanding and balancing of the risks and benefits, testing for glaucoma in patients less than 40 years of age was established by the judge as a medical standard of care.
An ethical expert witness must be careful in differentiating for a jury between a widely accepted standard of care and ideal care, or care that might be provided by the most astute clinician practicing under optimum circumstances. This is a particular hazard for clinicians whose only practice experience has been in a tertiary care facility (for example, medical school faculty) who are testifying in cases involving community facilities with typical practicing clinicians working with limited backup and equipment. An expert must also be able to help the jury understand the difference between the type of evaluation or care that is most commonly rendered for a particular condition, and equally acceptable methods that are not often rendered but are also medically valid or theoretically sound. The expert must also be able to clearly understand and to delineate the difference between reasonably competent care and care that would be considered substandard by an average practitioner under any circumstances.
An ethical expert must be careful to evaluate each case as if the end result is not known. Everyone knows that “hindsight is 20/20,” yet many attorneys and their witnesses cannot seem to resist applying the taint of an untoward outcome to their analysis of the case. Representation of one’s personal opinion as an absolute truth is misleading to a lay jury, and thus is unethical. Personal opinion and preference may be offered during expert testimony, but should be clearly designated as such. The ethical witness will recognize that in most cases differences of opinion between competent medical practitioners will exist, and acknowledge that the ideal course of events is almost always clearer when viewed retrospectively in light of a less than optimal outcome.
An additional responsibility of the expert witness is to differentiate for the jury between malpractice and an unfortunate occurrence. Many laypersons do not understand that an untoward outcome does not necessarily indicate that malpractice has occurred. Plaintiff’s bar has done nothing to dispel this misconception. Typically defense counsel will attempt to make this point during cross examination, but the ethical expert witness will affirm this fact even when it may detract from their theory of liability in the case. All experts have an ethical obligation to educate the public about the reality of the practice of medicine.
FINANCIAL INFLUENCES
Ethical expert testimony should not be provided for financial gain. Reasonable compensation for a physician’s time used in analysis or testimony in a case is ethically acceptable, but financial remuneration must not be the key motivation. Compensation for time expended acting as an expert witness should be commensurate with compensation that would be earned during the same amount of time devoted to medical practice, and not indexed to the “market rate” for expert testimony. For a physician to earn more through work as an expert witness than as a practicing physician is morally questionable if not unethical — yet many do. Expert testimony by physicians can be useful to juries, the profession, and society. However, exorbitant fees charged for such review and testimony will predictably increase the cost of malpractice defense, and therefore threaten liability insurance premiums, liability insurance availability, and ultimately the availability and affordability of health care. Under no circumstances is it appropriate for an expert’s professional remuneration to be contingent upon the outcome of a case. Such an arrangement immediately casts doubt on the objectivity of an expert witness. In fact, an ethical expert will establish a fee schedule at the beginning of any case, so as to avoid even the appearance of contingency billing and attendant bias.
UNETHICAL EXPERT WITNESS PRACTICES
Acting as an expert witness has become a profession for some individuals. The medicolegal annals are replete with testimony by “hired guns” who earn a significant portion or even the majority of their professional income from testifying in malpractice cases. Some have not practiced for years, falsify their current level of practice or past experience, or practice just enough to keep their medical licenses or be qualified in their states as expert witnesses. Some have been barred from acting as expert witnesses on these or other grounds in some states, yet continue to testify in others. Some use past credentials as evidence of current expertise. Some witnesses typically testify almost exclusively for either the defense or the plaintiff. Accurate records should be kept by every medical expert of the number of cases that they have reviewed, in which they have given depositions and given testimony, the nature of the case, and the side for which side they testified. This is a requirement for testifying in federal court. If there is a significant imbalance, then either the expert is selectively choosing cases or the bar is selectively choosing experts. Either practice casts doubt on the objectivity of the witness, since a skilled and objective witness should be sought out equally by all members of the bar who participate in medical malpractice.
One particularly egregious statement is often made by those acting as expert witnesses on behalf of plaintiffs. Any physician who states “if it wasn’t documented, it wasn’t done” is either lying or has never practiced medicine. Yet there is no more common mantra to be heard among the expert witnesses serving the plaintiff’s bar. This concept may be a useful teaching tool for risk managers, but it is incompatible with the reality of practicing medicine and has no place in a deposition or courtroom in our universe. Even the most compulsive video docudramatist could not possibly document every aspect and element of any one clinical encounter. An ethical expert should not make this utterance at all, let alone under oath.
RECOURSE FOR UNETHICAL EXPERT TESTIMONY
The basic flaw in the judicial system’s dependence on expert witness testimony is that there is no accountability for statements made by experts under oath. Even if the testimony is successfully impeached (shown to be false) during trial by the opposing side, very little if anything will happen to the expert. On rare occasions an expert may be disqualified by a judge for behaving unethically on the witness stand (for example, exchanging signals with clients or attorneys during testimony), or on the basis of some obvious falsification of qualifications uncovered through cross examination during the course of a trial. Some courts have disqualified individual experts as not being sufficiently expert in a given field, which has some precedential value in other courts.
Counterclaims or other means of legal recourse against expert witnesses who testify falsely is extremely difficult to mount, both because of the financial and time commitment involved, and because of the legal presumption that testimony provided under oath and not impeached at trial is truthful testimony which has been provided in the public interest. To be actionable in a civil suit, actual malice must be shown on the part of the expert witness in providing false testimony that is damaging to the defendant physician, and this for all intents and purposes has been found to be a nearly insurmountable standard.
PEER REVIEW OF EXPERT TESTIMONY
Ideally, medical expert testimony would be routinely peer reviewed to ensure it meets the ethical standards of the AMA and other medical professional societies. In some states expert testimony has been included in the definition of medical practice, and thus can be subject to peer review and licensure action by the state medical board. A few states are considering requiring a limited state license in order to testify in the state, but this is by no means standard practice. Only one state to date (North Carolina) has revoked the license of a professional expert witness on the basis that unsupportable testimony constituted unprofessional conduct.3 This ruling is under appeal, and presumably other states are waiting for the outcome before deciding whether to proceed in any complaints pending in their own states regarding this issue.
Some professional societies (such as the American Association of Neurological Surgeons,4 American College of Emergency Physicians, American College of Obstetricians and Gynecologists, American College of Surgeons, and the American Society of Plastic Surgeons) will review the testimony of members acting as expert witnesses upon complaint by another member, and others are investigating the possibility of following suit. But sanctions in the event of proven false or unethical testimony are generally limited to those affecting the expert’s membership in the society.
The US Supreme Court recently upheld the right of a professional society to discipline a member for inappropriate expert testimony (the Supreme Court refused to hear the appeal, thereby allowing the decision to stand).5 The American Association of Neurological Surgeons suspended a neurosurgeon for giving improper expert witness testimony at a medical malpractice trial. This precedent represents an important victory for professional societies who include expert witness testimony of their members in their ethical guidelines and disciplinary procedures. Members who believe an expert has not acted in an ethical manner while giving testimony may request a review of the testimony by their specialty society (if the witness is a member). Not all societies, however, have such a mechanism in place, and not all experts belong to medical societies. Further, if the expert is from a different specialty than the defendant (which is often the case), that specialty society has no obligation to a nonmember complainant from another specialty.
Another type of expert witness is emerging in states where professional liability statutes require some form of pre-certification of the likelihood of professional negligence prior to the initiation of a suit: the “certifying” expert. A physician will be asked to review the records of the case and present an affidavit to be submitted with the case filings. Often a single specialist will be asked to opine about the liability of all health care workers whose names appear in the record, including physicians of other specialties and even nonphysicians. The affidavit will sometimes be prepared by the law firm and submitted to the expert along with the records for initial review. Certifying experts in some states (notably Illinois) must sign the affidavit, but his identity need not be revealed to the parties named in the case. Therefore, there is no possibility of any type of peer review of this type of expert testimony, because it cannot even be determined by a defendant that the affiant is a physician unless that expert also serves as a testifying expert witness in the case.
Certifying experts may feel that they need not conform to the same standards as an expert who is actually testifying in a case, because the risk of a given named defendant making a settlement of the claim is less predictable at this stage of the case. Yet, physicians named as possibly negligent by a certifying expert are forced to defend themselves and will have the claim on their records with credentialing agencies and institutions forever, regardless of the outcome. Therefore the same ethical standards that apply to “testifying” experts should apply to certifying experts.
An ethical physician who is asked as an expert to certify a claim for potential negligence should carefully consider whether or not he would qualify to serve as an expert witness who is testifying in the case. Such a physician should, at a minimum, be familiar with the standard of care for each potential defendant whose care he intends to consider, using the criteria outlined above for “testifying” experts. A physician who makes a certification against a health provider, without such qualification as an expert, should be subject to peer review in the same manner as any other expert witness.
CONCLUSIONS
It is ethical and appropriate for physicians to serve as an expert witness. But serving in this way involves certain moral and ethical obligations. A physician who takes part in medicolegal case evaluation or expert medical testimony should first have knowledge and relevant experience in the specialty and/or the procedures involved in the case. An ethical expert must make every attempt to educate themselves about every aspect of the case, to analyze all available information carefully informed by the appropriate standard of care, and to give informed, truthful, non-biased opinions about the care that the patient received. The expert exists to educate and serve the judge and jury, not the parties to the case or legal counsel. Ethical expert medical opinion should never be influenced by what the witness believes the attorney desires, or by any remuneration that is offered. All expert testimony should follow ethical guidelines established by the AMA and other medical societies, and should be able to withstand peer review and disciplinary scrutiny. The last concept is the simplest, yet the most profound: The hallmark of the ethical expert witness must always be unswerving dedication to the integrity of the process and, ultimately, to the truth.
Parts of this article were adapted with permission from an article entitled “Expert Witness Testimony: Pitfalls and Dilemmas,” written jointly with Robin Hemphill, MD, and Catherine Marco, MD, for the American College of Emergency Physicians ACEP News, July 2002.
References
