An Overview of the NASS Guidelines for Members Testifying as Expert Witnesses
Are you an expert called to testify about spinal injuries? Whether offering your opinion in a medical malpractice case, a product liability dispute, of a personal injury matter, these guidelines will help to guide you through the process of offering your expert medical testimony. These guidelines are also based on the North American Spine Society Expert Witness Guidelines:
The American justice system often requires the testimony of expert witnesses to assist the triers of fact (i.e., the judge or jury) in understanding difficult factual matters. In these instances, an expert witness may offer testimony regarding his or her opinions on a specific matter in which that person has unique experience or knowledge. These experts are often hired by one side or the other in the case, which can lead an expert to the temptation of biased testimony. NASS guidelines advise that its members should testify in an impartial and prudent manner.
Witnesses are designated as experts if they have knowledge of any specific topics thought to be beyond the ordinary knowledge of the average lay person. As such, an expert's opinion can have a great influence in a case. NASS expects its members to avoid becoming advocates for either side, even if retained by that side to testify. NASS members are expected to act as spokespersons for their organization and profession, providing an expert opinion with the practiced behavior of a prudent medical practitioner who specializes in treatment of the spine, even giving alternate interpretations if appropriate.
Prior to offering any expert opinion or testimony, you should become familiar with all pertinent data of the particular matter at issue, including review of all relevant medical records. You should also review prior and current concepts related to standard medical practice in the matter at issue, and be able to differentiate between these and personal opinions not generally accepted by other medical practitioners who specialize in spine treatment. NASS also advises that its members should not concern themselves with the legal issues of the matter in question, however, this could be ill advised given that doing so may leave the witness unprepared for a brutal cross-examination by the opposing counsel.
NASS's suggestion that the expert give balanced testimony, even offering alternative theories, is designed to advance the NASS policy. But, it is not a bad idea given that this can help to demonstrate the expert's broad range of experience and knowledge, and also helps to show that the expert is not overly biased as a result of having been retained by one of the parties. Obviously, this also means that any testimony should be full, forthright, and truthful. After all, the expert is under oath just like any other witness.
NASS guidelines also require that its members charge only a reasonable fee commensurate with the time and effort requried to review the particular matter and prepare for the testimony. Moreover, both NASS and most state Bar Associations prohibit an expert's compensation from being contingent in any way upon the outcome of the case.
Finally, NASS guidelines require that its members who testify as experts should be actively engaged in the practice of medicine or, alternatively, should be able to demonstrate sufficient familiarity with present practices in the area of his or her testimony to warrant designation as an expert witness. This will also be required by the law and if you are not comfortable with this requirement, you should advise the attorney for the side that has retained you to testify before trial. Otherwise, you may find yourself not only harming your client's case, but potentially embarrassing yourself and exposing yourself to liability.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.