Guidelines for Expert Testimony in Medical Liability Cases

The role of an expert witness in a medical liability case is to testify to the standards of care in a given case, and to explain how the defendant did or did not conform to those standards. An expert witness may be asked to testify as to whether a deviation from the standard of care caused the injury. Expert witnesses are also called upon to help an attorney determine if a case has merit, and in several states attorneys are required by law to consult an expert before filing suit.

Because experts are relied upon so heavily to help courts and juries understand the “standards of practice” as applicable to a given case, care must be exercised that such “expert testimony” does not narrowly reflect the expert's personal views about applicable standards to the exclusion of other acceptable, and perhaps more realistic, choices. The standards of care for generalists

may not necessarily be the standards of care for specialists.

In medical malpractice litigation, negligence is the predominant theory of liability. In order to recover from negligent malpractice, the plaintiff must establish the existence of the physician’s duty to the plaintiff, usually based upon the existence of the physician-patient relationship; the applicable standard of care and its violation; a compensable injury; and a causal connection between the violation of the standard of care and the resulting harm.

However, in some instances, a properly indicated and executed procedure may have a less than desired outcome. This is sometimes referred to as a “maloccurence.” The potential for personal satisfaction, professional recognition, or financial reward often encourages “expert testimony” that overlooks the distinction between a simple maloccurrence and actual malpractice. As a result, the various professional organizations almost universally agree that an expert must testify in an objective, unbiased fashion, even if that testimony may, at times, be less than ideal for the client that has hired that expert to testify.

Under the various guidelines, truthfulness is essential and misrepresentation or exaggeration of clinical facts or opinion to attempt to establish an absolute right or wrong may be harmful, both to the individual parties involved and to the profession as a whole. Similarly, the guidelines all discourage the acceptance of fees that are disproportionate to those customary for such professional endeavors or that would give the expert a stake in the outcome of the case.

The 1992 opinion of the American Medical Association on Medical Testimony states as follows:

“As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.

The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician’s evaluation of the case. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.”

The following principles have been adopted as guidelines for the American Academy of Pediatrics and its members who assume the role of expert witness, and are identical or very similar to those adopted by professional organizations for many other medical specialties:

1. The physician should have current experience and ongoing knowledge about the areas of clinical medicine in which he or she is testifying and familiarity with practices during the time and place of the episode being considered as well as the circumstances surrounding the occurrence.

2. The physician’s review of medical facts should be thorough, fair, objective, and impartial and should not exclude any relevant information in order to create a perspective favoring either the plaintiff or the defendant. The ideal measure for objectivity and fairness is a willingness to prepare testimony that could be presented unchanged for use by either the plaintiff or defendant.

3. The physician’s testimony should reflect an evaluation of performance in light of generally accepted standards, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls outside accepted practice standards.

4. The physician should make a clear distinction between medical malpractice and medical maloccurrence, which is not the result of a violation of the applicant standard of care when analyzing any case. The practice of medicine remains a mixture of art and science; the scientific component is a dynamic and changing one based to a large extent on concepts of probability rather than absolute certainty.

5. The physician should make every effort to assess the relationship between the alleged substandard practice and the patient’s outcome, because deviation from a practice standard is not always the cause of the less- than-ideal outcome at issue in the case.

6. The physician should be willing to submit transcripts of depositions and/or courtroom testimony for peer review.

7. The physician expert should cooperate with any reasonable efforts undertaken by the courts or by plaintiffs’ or defendants’ carriers and attorneys to provide a better understanding of the expert witness issue.

8. It is unethical for a physician to accept compensation that is contingent upon the outcome of the litigation.

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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.