Guidelines for Genetics Expert Witnesses Based on American College of Medical Genetics Recommendations

Concerns about the ethics and accuracy of expert witness testimony by physicians or scientists have been raised in recent years by a number of medical specialties, news sources, and legal professionals. Observers have noted that improper medical expert testimony typically involved one or more of the following shortcomings:

1. Lack of suitable qualifications,
2. Unique theories of causation,
3. Unique interpretation of findings,
4. Misquoting of the scientific literature, and
5. Blatantly false statements.

Concern about inaccurate medical expert witness testimony has prompted many professional organizations to develop guidelines for the minimum qualifications and appropriate behaviors of expert witnesses regulated by those organizations. In response, the ACMG created a set of guidelines for expert witness testimony in the field of medical

genetics.

The ACMG believes it is in the public interest for those testifying as experts in medical genetics to be knowledgeable, readily available, unbiased, and objective. To limit uninformed and possibly incorrect or misleading testimony, the ACMG expects expert witnesses to be qualified for their role and that they should follow a clear and consistent set of ethical guidelines. As such, the Social, Ethical and Legal Issues Committee of the ACMG surveyed the literature and the guidelines of selected medical
specialty organizations with regard to current guidelines for expert witness testimony, and, using these materials as a foundation, created its own set of guidelines which are now widely used in qualifying genetics experts as witnesses.

Qualifications

To limit uninformed and potentially incorrect or misleading testimony, the ACMG recommends that the expert witness in the specialty of medical genetics should meet the following minimum qualifications:

1. The physician expert witness should have a current, valid, and unrestricted license to practice medicine in the state or territory in which he or she practices.

2. The medical genetics expert witness, whether a physician, laboratory scientist, genetic counselor, or PhD Medical Geneticist, optimally should be a Diplomate of the American Board of Medical Genetics or the American Board of Genetic Counseling. Moreover, he or she should be qualified by experience and demonstrated competence in the subject matter of the case (e.g., through clinical or laboratory practice, publications, submitted abstracts, presentations at scientific meetings, and service on editorial boards).

3. The expert witness should be familiar with the clinical practice of the specialty or the subject matter in the case and should be actively involved in the clinical practice of the specialty or the subject matter of the case for at least three (3) of the previous five (5) years at the time of testimony.

4. The expert witness should affirm and be able to document that not more than 20% of his or her professional activities involve serving as an expert witness.

Ethical guidelines for legal proceedings

Physicians and scientists have an ethical obligation to testify in courtroom proceedings when appropriate. The expert witness should meet high ethical standards, should be impartial, and should adhere to the following ethical guidelines:

1. The expert witness should provide fair and impartial testimony and should base opinions on first-hand knowledge in the area of specialty and an understanding of the facts of the case.

2. The expert witness should review and be knowledgeable about the standards of care or practice that were accepted at the time of the event(s) giving rise to the litigation.

3. The expert witness should be prepared to state the basis of the testimony presented, and whether it is based on personal experience, specific clinical or scientific reference, or generally accepted standards in the specialty field or area.

4. Compensation for an expert witness should be reasonable and commensurate with expertise and the time and effort necessary to evaluate the facts of the case. The expert witness should not agree to or accept a fee that is contingent upon the outcome of a case (note, in most jurisdictions it would be impermissible for an attorney to offer such compensation under lawyer ethical standards, as well).

5. The expert witness should be aware that transcripts of depositions and courtroom testimony are public records and may be subject to independent peer review.

6. The expert witness should not engage in advertising or soliciting employment as an expert witness if such advertising or solicitation contains false or misleading representations about the expert's qualifications, experience, or background.

The ACMG created these guidelines both to assist genetics experts and attorneys in determining the appropriate qualifications and conduct of an expert witness. It is also intended as a way of guarding against self-identified expert witnesses who use unsupported theories of medical or genetic causation, or who presents inaccurate interpretations of scientific fact or process. While these types of improper testimony can have immediate impact on the case at hand, they can also lead to legal precedents that allow or prohibit the admission of evidence in other cases based on incorrect understandings by the courts of the widely accepted understanding of the science.

The ACMG minimum recommendations provide general guidance regarding appropriate qualifications for the expert witness in medical genetics, for acceptable professional conduct. They are not, strictly speaking, rules of conduct with consequences attached for infractions. Consequently, legal practitioners should not overstate the importance of the ACMG guidelines while qualifying an expert witness, nor attempt to rely upon an infraction or disagreement with the guidelines as proof of professional wrongdoing. Rather, the guidelines are just that: general recommendations designed to improve the state of expert testimony in the area of genetics.

Provided by HG.org

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.