Expert Medical Witnesses: Should You Get Involved? We Plead the Fifth

ONCNG Oncology, September 2008, Volume 9, Issue 9

Many physicians are skeptical about getting involved in the practice, and rightfully so. Sermo and other online physician communities are rife with posts and comments from physicians who know colleagues who have stretched the truth or even lied on the stand because of personal beliefs or compensation.

The various professional medical societies and state licensing boards have developed (and religiously enforce) specialty-specific guidelines for expert witness testimony, and if a physician is suspected of providing false testimony, he or she may be disciplined, fined, or even stripped of their license. Seidman says that physicians should always act appropriately on the stand. “When a physician provides expert testimony, it should be with the understanding that this testimony not only may create a future standard of care, but also is, in reality, an extension of that physician’s professional practice of medicine. As such, the same attention to the integrity of the opinions and testimony should be applied as one would exercise in that medical practice.”

Know what to do if unfairly reprimanded by your medical society.

In very rare circumstances, physicians may be unjustly reprimanded by their respective boards for their testimony. The threat of this, plus the close scrutiny on some specialties (especially neurosurgeons and Ob/Gyns, says Livingston), may make some physicians hesitant to testify as expert witnesses. If a physician is reprimanded or punished for his or her testimony, it can follow them around and possibly prevent them from being able to testify after the incident, as they must state this when asked if any prior off enses have been documented. To help prevent this, Livingston provides a service at MedWitness through which physicians can participate in a mock “hearing,” which includes a doctor from the accused physician’s field, a trial lawyer, and other professionals. Livingston explains: “Let’s say a neurosurgeon testifi ed somewhere and the academy found him guilty of improperly testifying—either for the plaintiff or the defendant; now, he has a bit of a black mark. Th e assembly is not a governmental agency, but if someone ever asked this doctor at trial ‘have you ever had anyone ever say you have done anything improper?’, he has to answer. What we off er is a counterbalance; we say ‘let us do it, too, and let us see if we agree with what they found, and we will put a trial on. If we disagree with what’s been found, we’ll issue our fi ndings.’ Th en, if questioned on the witness stand about being found guilty for improperly testifying, that physician can answer ‘yes, but this place also investigated the situation and they found that I didn’t do anything wrong.’” It’s a unique service, and Livingston admits that he has not had many takers yet. He notes that it’s a service people will use only when they are confi dent they have done nothing wrong; physicians who know they might have crossed the line would not be able to exonerate themselves by taking part in such a hearing.

Remember, you will be cross-examined.

Cross-examination will require that the physician answer to both the plaintiff ’s and the defendant’s lawyers; this will often result in a game of trying to trip the expert medical witness up by twisting words around. In addition, both sides are likely to present their own expert medical witness, who will sometimes disagree about the questions at hand. What happens when two supposed “experts” have dramatically diff erent opinions on the same legal case? Livingston puts it rather bluntly, “There are people who do not like the system that say ‘how do 12 non-medical jurors judge this expert from Harvard and one from Stanford.’ It’s tough, and you kind of get ‘rump justice’— you don’t really get the truth all the time. Just because someone won doesn’t mean they were right; it just means that the jury believed them. Maybe one doctor dressed nicer or spoke better.” Livingston claims that relying on jurors who are unlikely to have any medical knowledge to correctly choose between two seemingly reputable sources with distinctly diff erent stances makes it hard for many doctors to have faith in the system, leading to widespread physician disinterest in testifying.

Understand the difference between legal and medical standards.

Another reason physicians may be reluctant to become expert medical witnesses, according to Babitsky, is because they are concerned with the less-stringent ways in which the law determines standards of care. “The law is concerned with the standard of ‘more probable than not’ (ie, over 50%). Medicine is concerned with much higher probabilities when rendering medical care. The problem for many physicians is that they are not used to the ‘more probable than not’ standard when rendering opinions and testifying in court.” Th is discrepancy between the two sets of standards concerns physicians who are skeptical about “correct medicine” prevailing.

It’s not all bad

At this point, we’re guessing you are absolutely enthralled about the possibility of becoming an expert medical witness. However, before you go thinking it’s more trouble than it’s worth, there are actually some benefi ts to consider before making up your mind.

There will always be a demand.

Expert witnesses in general, not just expert medical witnesses, will always be needed. They have the knowledge and experience that are necessary to understand the nuts and bolts of complex legal cases. It’s just like anything else; in order to truly understand a subject, you turn to those who have dedicated their professional lives to it. When it comes to expert medical witnesses, Seidman concludes that, “Experts are commonly called to testify on several issues. These include standard of care, causation, damages, and prognosis. Several of these require the expert to apply his or her knowledge directly to the question, while others require the physician to incorporate knowledge of how others would act. In this way, the expert contributes not only judgment and expertise, but also the knowledge of how peers handle similar cases. Without the testimony of an expert witness, the evidence-based guidelines alone would be incapable of establishing the legal standard.”

Helping a patient in need can be extremely gratifying.

Although we have all read accounts of physicians’ bad expert medical witness experiences, many also speak about how satisfying it is to help out one of their patients. Maybe you aren’t crazy about adjusting your regular schedule to possibly get caught up in a legal system that is far from perfect. However, many physicians decide to become an expert medical witness because they believe in the cause. By providing your honest testimony to support a cause, you might be able to help improve the quality of life of someone in need. You will be paid (sometimes handsomely) for your time. Many expert witnesses charge an up-front minimum payment, in addition to an hourly fee that is often more than they would be charging in the offi ce. Th is means that expert medical witnesses are, more often than not, being paid more for giving their medical opinion than they would be for actually practicing medicine in the typical sense.

Where to start

First, if it’s offered, get boardcertified in your specialty. After that, it helps to find a business that will train you to become an effective expert medical witness and will then actively find appropriate cases dealing with issues in your specialty. Organizations like the American Medical Forensic Specialists, MedWitness, and SEAK are excellent places to start; they can help you prepare for the experience and make sure that you understand exactly what you are getting into. Just remember to tell the truth, the whole truth, and nothing but the truth.