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.