The physician who acts as an expert witness is one of the most important participants in malpractice litigation. It is appropriate for physicians to serve as an expert witness for either the defendant or plaintiff. In the current medicolegal system, expert witnesses play an essential role in determining whether a standard of care has been met, and in cases where a breach occurs, quantifying the consequences of said breach.
Recommended qualifications for the physician who acts as an expert witness:
- The physician expert witness must have a current, valid, and unrestricted state license to practice medicine at the time of the alleged occurrence.
- The physician expert witness must be a diplomate of a specialty board, appropriate to the subject matter in the case at the time of the alleged occurrence and should be qualified by experience in the subject of the case.
- These specialty boards include the American Board of Medical Specialties, American Board of Oral and Maxillofacial Surgery, the American Osteopathic Association, and the Royal College of Physicians and Surgeons of Canada.
- The physician expert witness who provides testimony in a case involving a specific surgical procedure (or procedures) should have held, at the time of the alleged occurrence, privileges to perform the same or similar procedures in a hospital accredited by the Centers for Medicare and Medicaid Services (CMS) or organizations approved by CMS for hospital accreditation.
- At the time of the alleged occurrence, the physician expert witness must be familiar with the accepted standard of care and should have been actively involved in the clinical practice of the specialty of the case.
- The physician expert witness should be prepared to document the time that is involved in serving as an expert witness. The physician expert witness also should be willing to disclose the amount of remuneration obtained for such activities and the total number of times they have testified for the plaintiff or defendant.
Recommended guidelines for behavior of the physician acting as an expert witness
- Physician expert witnesses are expected to be impartial and should not adopt a position as an advocate or partisan in the legal proceedings.
- Physician expert witnesses should not be actively involved in coaching witnesses, defendants, or plaintiffs regarding cases where they are providing expert witness testimony. It is imperative to avoid coaching to alter opinions in a way that benefits a case. Expert witnesses should only provide facts and information and be a neutral educator that helps juries understand technical aspects of cases.
- The physician expert witness should review all relevant medical information and depositions in the case and testify to its content fairly, honestly, and in a balanced manner. The physician expert witness also 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 negligence (substandard medical care that results in harm) and an unfortunate outcome in the context of appropriate care.
- The physician expert witness should be prepared to state the basis of their 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 review or be familiar with the standards of practice and be prepared to discuss appropriate alternate diagnosis and/or treatment/management methods and views if these exist.
- 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. A fee schedule should be standardized.
- 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 review. The physician expert witness should willingly provide transcripts and other documents pertaining to the expert testimony to independent peer review if requested by their professional organization. The physician expert witness should be aware that failure to provide truthful testimony will expose them to criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of their professional license.
Members are encouraged to be familiar with the ACS Statements on Principles before serving as an expert witness. 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. Additional information on the disciplinary process is provided by the ACS Central Judiciary Committee.
