This statement was originally published
in the June 2000 issue of the Bulletin. This
revised statement incorporates revisions
recommended by the College’s Central
Judiciary Committee and was approved by the Board of Regents at its February 2011
meeting.
Physicians understand that they have an obligation to
testify in court as expert witnesses on behalf of the
plaintiff or defendant as appropriate. The physician who
acts as an expert witness is one of the most important figures
in malpractice litigation. In response to the need to
define the recommended qualifications for the physician
expert witness and the guidelines for his or her behavior,
the Patient Safety and Professional Liability Committee of
the American College of Surgeons has issued the following
statement.
Failure to comply with either the recommended qualifications
for the physician who acts as an expert witness, or with
the recommended guidelines for behavior of the physician
acting as an expert witness, may constitute a violation of one
or more of the Bylaws of the American College of Surgeons.
Recommended qualifications for the physician who acts as an expert witness:
- The physician expert witness must have had a current,
valid, and unrestricted state license to practice medicine
at the time of the alleged occurrence.
- The physician expert witness should have been a diplomate of a specialty board recognized by the American Board of Medical Specialties at the time of the alleged occurrence and should be qualified by experience or demonstrated
competence in the subject of the case.
- The specialty of the physician expert witness should be appropriate to the subject matter in the case.
- The physician expert witness who provides testimony for a plaintiff or a defendant in a case involving a specific surgical procedure (or procedures) should have held, at the
time of the alleged occurrence, privileges to perform those
same or similar procedures in a hospital accredited by The
Joint Commission or the American Osteopathic Association.
- The physician expert witness should be familiar with
the standard of care provided at the time of the alleged occurrence and should have been actively involved in the clinical practice of the specialty or the subject matter of the case at the time of the alleged occurrence.
- The physician expert witness should be able to demonstrate evidence of continuing
medical education relevant to the specialty or
the subject matter of the case.
- The physician expert witness should be prepared to document the percentage of time
that is involved in serving as an expert witness.
In addition, the physician expert witness should
be willing to disclose the amount of fees or
compensation obtained for such activities and
the total number of times he or she has testified
for the plaintiff or defendant.
Recommended guidelines for behavior of
the physician acting as an expert witness:
- Physicians have an obligation to testify in
court as expert witnesses when appropriate.
Physician expert witnesses are expected to be
impartial and should not adopt a position as an
advocate or partisan in the legal proceedings.
- The physician expert witness should review all the relevant medical information in the case
and testify to its content fairly, honestly, and in
a balanced manner. In addition, the physician
expert witness may be called upon to draw an
inference or an opinion based on the facts of the
case. In doing so, the physician expert witness
should apply the same standards of fairness and
honesty.
- The physician expert witness should be prepared to distinguish between actual negligence
(substandard medical care that results
in harm) and an unfortunate medical outcome
(recognized complications occurring as a result
of medical uncertainty).
- The physician expert witness should review the standards of practice prevailing at the time and under the circumstances of the alleged occurrence.
- The physician expert witness should be prepared to state the basis of his or her testimony
or opinion and whether it is based on
personal experience, specific clinical references,
evidence-based guidelines, or a generally accepted
opinion in the specialty. The physician
expert witness should be prepared to discuss
important alternate methods and views.
- Compensation of the physician expert witness
should be reasonable and commensurate
with the time and effort given to preparing for
deposition and court appearance. It is unethical
for a physician expert witness to link compensation
to the outcome of a case.
- The physician expert witness is ethically and legally obligated to tell the truth. Transcripts
of depositions and courtroom testimony are
public records and subject to independent peer
reviews. Moreover, the physician expert witness
should willingly provide transcripts and other
documents pertaining to the expert testimony
to independent peer review if requested by his
or her professional organization. The physician
expert witness should be aware that failure to
provide truthful testimony exposes the physician
expert witness to criminal prosecution for
perjury, civil suits for negligence, and revocation
or suspension of his or her professional license.
Reprinted from Bulletin of the American College of Surgeons
Vol.96, No. 4, April 2011