An attorney approaches you about testifying as an expert witness on behalf of a patient against a physician in your area. How do you decide whether to testify?
The decision of whether to testify in a malpractice case is one of the most difficult, yet one of the most important non-patient care decisions a physician can make. Expert testimony is essential to medical malpractice litigation.
The physician expert, however, is often caught in the middle of conflicting tensions. The obligation to promote fairness, justice, and self-regulation of the profession are balanced against the professional and social pressure not to testify against colleagues and not to participate in a legal system that many physicians feel victimizes members of the profession. Nonetheless, the legal system relies on competent medical expertise to be just and fair, and relies on medical professionals to provide that expertise. An individual physician’s decision to participate in a medical malpractice case should be guided by careful consideration of their duties as applied to the specific situation.
What Is Expert Testimony, and Who Is an Expert?
A medical malpractice claim requires that the plaintiff show that the defendant(s) breached a duty to the plaintiff by failing to perform to the standard of care. The central issue in many malpractice cases involves defining the standard of care and determining whether the defendant(s) deviated from it. The only way for a jury to determine what is the standard of care is to listen to the opinions of experts and make a decision based on the persuasiveness and credibility of the experts.
Expert witnesses differ from other witnesses because expert witnesses can offer opinions while other witnesses can only testify to facts or their own personal experience.1 Expert witnesses must have specialized knowledge or experience to be allowed to offer opinion testimony. The U.S. Supreme Court has required that scientific testimony be relevant and reliable, and requires the judge presiding over a case to determine the validity of scientific testimony.2 If the judge decides that scientific testimony to be offered by an expert is not valid or reliable, the judge may refuse to allow it. Thus, the judge determines who may serve as an expert in front of the jury.
Licensed physicians are usually considered experts on the standard of care, regardless of the specialty or area of practice of the testifying expert. Tort reform in many states is focusing on expert testimony, including limiting judicial discretion in qualifying experts. For example, in Pennsylvania, only an expert in the field of the defendant may give expert testimony against him or her.
Given that most physicians are allowed by most judges to testify as to the standard of care, an expert may be testifying outside their scope of practice or the area in which they have actual specialized knowledge and experience. Further, once an expert is allowed to testify, there are no consequences for offering opinions that are unsupported by evidence or patently inaccurate. These are the areas where professional integrity is crucial, and professional societies can play a role in regulation and oversight of physicians serving as experts.3
Self-Regulation of Expert Witnesses
What do individuals and professional societies need to contribute to oversight of expert testimony? A physician’s obligation to participate in malpractice cases arises from the privilege of self-regulation enjoyed by the medical profession. As a result of the degree of specialized knowledge and skill needed to practice medicine, physicians have a duty to take action against other physicians who are impaired or incompetent.3 Professional societies promote the highest ethical and professional standards for members and therefore have a responsibility to discipline members who are irresponsible or unqualified in their expert legal involvement.
Physicians also have a duty to patients to provide expert testimony. In the event of harm caused by negligence, patients are denied any compensation at all if responsible physicians are unwilling to become involved as plaintiff’s experts. Physicians must uphold the duty to act in the best interest of patients and society and to promote justice in the system by rendering fair and honest opinions—even if that results in liability for a fellow physicians and despite the current atmosphere of negativity toward physicians testifying against other physicians.3
Based on these ethical principles, physicians have a duty to provide accurate and responsible expert testimony. Inaccurate expert testimony is damaging to the system in many ways: It increases malpractice costs, injures the reputation of individual practitioners, and adversely affects the standard of care by promoting false standards. Distinguishing irresponsible testimony from reasonable differences of opinion may be challenging. Any valid lawsuit will involve conflicting opinions as to whether the standard of care was met—otherwise there would be no need for expert testimony. To protect against overreaching, physicians should limit themselves to areas of their own academic and experiential expertise, and should limit their testimony to their scope of training or practice. Their opinions should be consistent with prevailing literature and good clinical practice. Offering an unusual opinion that contradicts the literature may be appropriate if the expert has good reason to believe the atypical opinion is correct and can provide evidence to support the claim.
Applying these principles to the practice of hospitalists requires special considerations. Hospital medicine is not a discrete specialty in the sense of having a certifying board or mandatory focused training requirements; however, hospitalists practice in a particular environment and should limit their expert testimony to that environment. Hospitalists have diverse practices and some practice outpatient medicine or primary care as well. Thus, it is particularly important for hospitalists to demonstrate responsibility and integrity in limiting their testimony to areas where they have genuine specialized knowledge and experience. Other physicians, attorneys, and judges must rely on hospitalists to enforce standards themselves because no single standard can be applied to all hospitalists.
As a further consideration in the interests of justice and professionalism, physicians should recuse themselves from any case with an actual or perceived conflict of interest. Prominent physicians, including public figures and society leaders, have the same duty regarding self-regulation in the profession and promotion of justice in the system as any other physician. Any reason to be personally predisposed to one side of the case or the other as a result of personal involvement or professional interests may make the physician an inappropriate expert. Unless testifying on behalf of the position of a society, a physician should not use society membership as direct evidence of expertise. Society leaders should be cautious about the appearance of conflict of interest, specifically that their status in the society confers special expert qualifications.
Professional societies have a special role in ensuring quality healthcare and a special role in the trust of society. Many societies, including the American Medical Association and the American Academy of Pediatrics have created guidelines for expert witnesses, and the AMA has further discussed the need for a more active role in expert oversight by professional societies.3 Societies need to establish standards for members who act as experts and create enforcement mechanisms for those standards. Further, societies should decide whether they intend to undertake formal disciplinary actions against physicians acting improperly by making the state disciplinary boards aware of their findings of improper conduct. Such standards and policies must be explicit, documented, and published. This is an expanded role for professional societies in the arena of explicit regulation and discipline of members, but there has been increasing recognition that professional societies are an ideal forum for increasing regulation and standards for expert testimony.4-5
The decision to participate in a medical malpractice case as an expert witness requires competence, accurate self-assessment, and integrity. A physician should testify only to what he or she genuinely believes to be the standard of care, regardless of which side approaches him or her. The physician should consider his or her current practice and expertise to decide if he or she can provide honest and accurate expert testimony.
He or she should keep in mind the interests of patients in having access to the courts and to fair compensation from injuries, and therefore physicians should have the courage and integrity to testify against colleagues when he or she genuinely believes that the colleague injured the plaintiff through a deviation from the standard of care. Society relies upon physicians to risk disfavor with colleagues in the interest of promoting justice and protecting patients when the physician believes that is the right thing to do. Physicians interested in policy issues around expert testimony should become involved in their professional societies to create and enforce quality standards for expert witnesses.
- Federal Rules of Evidence 701, 702, 703.
- Daubert v. Merrell Dow, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993).
- American Medical Association Code of Medical Ethics, Discipline in Medicine, E-9.04 Available at www.ama-assn.org. Last accessed May 25, 2006.
- Feld AD, Carey WD. Expert witness malfeasance: how should specialty societies respond? Am J Gastroenterol. 2005 May;100(5):991-995.
- Gomez JCB. Silencing the hired guns: ensuring honesty in medical testimony. J Leg Med. 2005 Sep;26(3):385-399.
New Leadership AcademyOffering to Debut in Nashville
Level II track created in response to demand
SHM is pleased to announce the expansion of its cutting edge leadership program, with the debut of a Level II track as part of the Leadership Academy Sept. 11-14 in Nashville, Tenn.
Over the course of four days, the Leadership Academy will provide hospitalist leaders with the skills and resources required to successfully lead and manage a hospital medicine program now and in the future.
Topics that will be addressed include:
- Leadership challenges in hospital medicine;
- Finance and the hospitalist;
- Leading recruitment, retention, and staff development; and
- Leading and managing change.
This course was created in response to feedback from previous Leadership Academy attendees and is designed to give them the opportunity to build on the time they’ve spent back at the hospital since attending a Leadership Academy. Level II offers an in-depth look at how to finance a hospital, insight on how to lead recruitment, retention, and staff development. It also presents advanced skills in negotiation.
Because Level II is considered an advanced course, attendees must have participated in a previous leadership academy or have completed an MBA program to be accepted.
As with any SHM educational event, ample time will be set aside for interaction with faculty and participants so you can get answers to your pressing questions and make connections for the future.
“The fact that learning takes place both inside and outside of the classroom is one of the things that makes SHM’s Leadership Academies so powerful,” says Larry Wellikson, CEO of SHM.
According to Scott Enderby, a Leadership Academy graduate, “This is the only medical conference I’ve ever gone to where I went to every meeting and still wanted more.”
The September venue—the Gaylord Nashville Resort & Convention Center in Nashville—offers ample opportunity to relax in the midst of your intense learning experience. From tours aboard the hotel’s Delta Flatboats to the chance to play 18 holes at the Grand Ole Opry Course, there is something for everyone, including your family.
To register for the September Leadership Academy, visit www.hospitalmedicine.org or call (800) 843-3360.
Can’t join us in Nashville? Mark your calendars for our winter Leadership Academy, Feb. 26-March 1, 2007, in Orlando, Fla. TH