Introduction

Members of the medical profession may occasionally be asked to testify as an expert witness sometime during their career. It is in the best interest of the legal and medical professions if this testimony, in either a civil or criminal case, is scientifically sound and provided by an unbiased expert witness. Medical professionals, as members of the medical community, patient advocates, and private citizens, have a professional and ethical responsibility to assist with the civil and criminal judicial processes fairly and unbiasedly.[1][1][2]

Evidence-based and experience-based opinions from medical professionals in legal cases have become increasingly common. Many professional medical societies (American College of Obstetrics and Gynecology, American College of Emergency Physicians, American Academy of Pediatrics, American Society of General Surgeons, American Association of Neurologic Surgeons,  American Academy of Orthopedic Surgeons, American Academy of Ophthalmology, American College of Cardiology, and American College of Radiology) have addressed the issue with recommendations or guidelines for case review.

Medical malpractice law is based on tort and contract law. Liabilities and unforeseen circumstances can arise from health care delivery by any level of providers, nurses, respiratory therapists, and ancillary personnel. Medical malpractice can impact every specialty and subspecialty.  No healthcare practitioner is immune. These liabilities may be based on negligence, insufficiently informed consent, intentional misconduct, breach of a contract, defamation, divulgence of confidential information, or failure to prevent foreseeable injuries to third parties.[3][4][5][6]

Of all potential liabilities in medical malpractice, negligence is the most common.  Medical negligence requires that the plaintiff establish the following elements:

1. The existence of the healthcare provider's duty to the plaintiff is usually based on the presence of a physician-patient relationship. 
2. The applicable standard of care and deviation from that standard
3. Damages, an injury compensable by monetary reimbursement
4. A causal connection between violating the standard of care and the purported injury.

In medical malpractice cases, the defendant’s behavior is compared to the standard of care for that situation. The standard of care is “reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, the same general line of practice, ordinarily have been exercising in like cases.” Currently, with the establishment of National Boards and greater standardization of practice parameters, there is less regional variability. Access to care and healthcare facilities in underserved or rural areas is the exception.[7]

Whether there was a deviation from the standard of care is often the most crucial decision of the expert witness in medical liability cases. Suppose it is determined that a deviation from the standard of care has occurred. In that case, a secondary role for the expert witness may be to provide an opinion regarding whether the deviation of the standard of care could have been the cause of the patient’s alleged injury.

There are several possible outcomes from a medical intervention: the condition improves, worsens, or remains unchanged. A deterioration in the patient’s condition does not necessarily indicate medical negligence. The three above outcomes are possible even with appropriate care and treatment. Medical negligence cannot be determined solely from an unexpected result, an unacceptable result, a failure to cure, a failure to recover, or any other situation that might indicate a lack of success of the intervention or care. An undesirable outcome in and of itself does not necessarily mean medical negligence. Likewise, a medical error in and of itself, even while falling below the standard of care, may have caused no damages and is probably not actionable in a claim for medical malpractice.

The burden of proof is different in civil cases than in criminal cases.  In civil cases, the plaintiff must convince the jury of its position with a preponderance of the evidence. A preponderance of the evidence means at least 51%. Therefore, the jurors in a medical negligence case must be convinced that the argument and evidence provided by the plaintiff are more plausible as the proximate cause of the alleged injury than the argument and evidence supplied by the defendants. 

Function

The expert witness is essential in determining medical negligence in the United States judicial system. The role of the expert witness testimony in medical malpractice cases is three-fold.

1. The expert witness is called on to establish the standard of care applicable to that case.

2. The expert is then asked to provide an opinion regarding any deviation from the standard of care.

3. Lastly, if it is determined that there was a deviation from the standard of care, the expert witness may be asked to offer an opinion as to whether or not there was a causal relationship between the deviation in the standard of care and the injury that the plaintiff alleges.[8][9][10]

Duties and Responsibilities of an Expert Witness

The involvement of the expert witness in medical malpractice cases can take many different forms. Even before filing an action, an attorney may need an expert to evaluate the claim's merits.  In some states, there is a "pre-suit" period in which a plaintiff's attorney must file a Notice of Intent, continuing the cause of action and the affidavit of an expert who has evaluated the claim's merits.  The expert witness will have reviewed the medical records and provided a written opinion regarding the standard of care and whether or not there has been a deviation from the standard of care. If the case continues, the expert will most likely be deposed. During a deposition, the expert witness provides recorded testimony under oath to the questions of attorneys from both sides.  The expert may be asked questions concerning their qualifications to render an opinion on the case. It is not unusual for the opposing council to scrutinize the other side's expert closely. The questions, especially from the opposing council, may include questions about the expert's training, area of specialization, and ability to render an opinion about the case. These questions have the potential to become quite adversarial.  As the case progresses, the strength and credibility of each side's expert may influence the jury's decision. The expert witness will be expected to provide testimony, under oath, to the judge or jury and often will need to educate the jury concerning the intricate details of these complicated cases.

The judge and jury will rely on the experience and expertise of the expert witness to clarify the medical standards. Therefore, the testimony should be clear, coherent, and consistent with the standard of care applicable during the incident.[11]

Issues of Concern

The expert witness's testimony is often a crucial component of a medical malpractice case.  Therefore, the testimony must be objective, accurate, reliable, and an appropriate medical record analysis as it relates to the standard of care. One of the most significant concerns among the legal community regarding expert witnesses is that not all experts provide ethical testimony supported by scientific or medical evidence.  Some attorneys "forum shop" until they locate an expert who will corroborate the attorney's opinion rather than use independent judgment. 

There are some examples of inappropriate testimony provided by expert witnesses and the effect of that testimony on the outcome of the case. As a result of these types of cases, when determining whether the testimony of the expert should be admissible in court, judges should consider the following: (1) whether the expert’s opinion has been peer-reviewed, (2) whether the expert can and has been tested, (3) the known or potential error rate of the theory; and (4) the general acceptance of the theory in the relevant scientific community.

The court determines the admissibility of expert medical testimony. Trial courts still frequently cite Daubert v Merrell Dow when ruling on a motion to preclude expert testimony.[12] Physicians may be asked to testify about patients they have not taken a medical history or examined personally. Nevertheless, they are expected to make good faith, educated judgments about causation, risk of injury, or future damages. They may even need to assess the medical records of a deceased litigant.

Some professional medical societies have published recommendations or guidelines for expert witnesses to ensure the highest quality and appropriate expert witness testimony.

Clinical Significance

The expert witness plays an essential role as an educator for the attorneys, the judge, and the jury. The expert must be able to review the specific case and recognize which aspects of the care and interventions, provided or not provided, are clinically significant. This testimony enables the attorneys to direct their arguments better and discuss only what is relevant. Also, the expert should be able to “translate” the scientific medical terminology so that someone without medical training can understand the clinically significant issues of a case. By providing education to the judge and jury, the expert witness assists them in reaching a more appropriate conclusion regarding the facts of the subject than they would have without the expert’s testimony.

General Guidelines for Fulfilling the Duties of an Expert Witness

• The expert witness should possess current experience and ongoing knowledge in the area where he or she is asked to testify.
• The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.[2] The key to this process is a thorough review of available and appropriate medical records and contemporaneous literature concerning the examined case.
• A medical expert’s opinion should reflect the state of medical knowledge at the event giving rise to the case.
• The expert witness should review the medical facts thoroughly, fairly, and objectively and not exclude any relevant information to create a view favoring either the plaintiff or the defendant.
• Expert witnesses should be chosen based on their experience where they provide testimony and not based on offices or positions held in medical specialty societies unless such positions are material to the witness's expertise.
• An emergency physician should not advertise or solicit employment as an expert witness where such advertising or solicitation contains false or deceptive representations about the physician’s qualifications, experience, titles, or background.
• The expert witness should be willing to submit the transcripts of depositions and testimony to peer review.
• An expert witness should never accept any compensation arrangement contingent on the litigation's outcome.
• Misconduct as an expert, including providing false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.
• Be familiar with the local state law, regulations, and practice of emergency medicine and strictly adhere to the state-specific definitions of negligence.

Other Issues

Examples of Society Recommendations

Expert witness recommendations from the American Academy of Pediatrics (AAP)

Advocacy and education: the AAP believes that establishing specific minimal qualifications for physicians serving as expert witnesses will improve the quality of testimony and promote just and equitable verdicts. Therefore, the AAP supports efforts to:

1. Implement the recommendations of this statement through legislative or regulatory reform of expert witness testimony (e.g., establish minimal qualifications for expert witnesses in medical negligence) and
2. Educate pediatricians (during residency training and through continuing medical education) to provide them with the skills and knowledge base needed to provide objective, scientific, and ethical expert witness testimony in legal proceedings involving alleged medical negligence.

Relevant qualifications: physicians should limit their participation as medical experts to cases in which they have genuine expertise. The following qualifications must be met (and verified) to demonstrate relevant education, certification, and experience.

1. Physician expert witnesses must hold a current, valid, and unrestricted medical license in the state where they practice medicine.
2. Physician expert witnesses must be certified by the relevant board recognized by the American Board of Medical Specialties or a board recognized by the American Osteopathic Association.
3. Physician expert witnesses must be actively engaged in clinical practice in the medical specialty or area of medicine about which they testify, including knowledge of or experience in performing the skills and practices at issue to the lawsuit.
4. It may be appropriate for an expert in the area of research that is complicated to be asked to explain the nature of the study to the jury (for example, the development of vaccines, cloning, DNA testing) that may be purely educational and not relate to the clinical care provided by the defendant.

Unbiased and complete testimony: physicians serving as experts in medical negligence actions should take all necessary steps to provide a thorough, fair, objective, and impartial review of medical facts. To meet that obligation, physicians agreeing to testify as experts in medical negligence cases should conduct themselves as follows:

1. Regardless of the source of the request for testimony (plaintiff or defendant physician), expert witnesses should lend their knowledge, experience, and best judgment to all relevant facts of the case.
2. Expert witnesses should take the necessary steps to ensure they have access to all documents used to establish the facts of the case and the circumstances surrounding the occurrence.
3. Relevant information should not be excluded for any reason and certainly not to create a perspective favoring the plaintiff or the defendant.
4. The expert witness’s opinion should be fair and objective. The expert witness should be comfortable with his or her testimony regardless of whether it is to be used by the plaintiff or defendant.

Standards of care: the physician expert witness should be familiar with the medical standards before accepting a case. Becoming schooled on a medical standard after accepting a case may lead to a biased understanding of the issue. A physician unfamiliar with the medical standards would not meet the recommended qualifications of an expert.

1. Before testifying, the physician expert witness should review and understand the current concepts and practices related to that standard as well as the concepts and practices related to that standard at the time of the occurrence that led to the lawsuit.
2. The testimony presented should reflect accepted standards within the specialty or area of practice about which the expert witness is testifying, including those held by a significant minority.
3. This should be stated candidly and clearly when various acceptable treatment modalities exist.
4. Expert witness testimony should not condemn performance that falls within generally accepted practice standards or condone performance outside accepted practice standards.

Assessing breach of care and proximate cause: physician expert witnesses must exercise care in assessing the relationship between the breach in the standard of care and the patient’s condition because deviation from a practice standard may not cause the patient outcome. Thus, medical expert witnesses should:

1. Base distinctions made between medical malpractice and medical maloccurrence on science, not on unique theories of causation;
2. Know that transcripts of depositions and courtroom testimony are public records and may be reviewed by audiences outside of the courtroom and
3. Be willing to submit transcripts of depositions and courtroom testimony for peer review.

Ethical business practices: the business practices (e.g., marketing, contractual agreements, and payment for services) associated with providing expert witness testimony must be conducive to remaining nonpartisan and objective throughout the legal proceedings.

1. Contractual agreements between physician expert witnesses and attorneys should be structured to promote fairness, accuracy, completeness, and objectivity.
2. Compensation for expert witness testimony should be reasonable and commensurate with the time and effort involved.
3. Physicians should not enter into contracts where the fees for expert witness testimony are disproportionately high relative to the time and effort involved.
4. Physicians should not enter into contracts in which the compensation for expert witness testimony is contingent on the case's outcome.

Expert witness guidelines for the specialty of emergency medicine from the American College of Emergency Medicine 

To qualify as an expert witness in the specialty of emergency medicine, a physician shall:

• Be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine;
• Be certified by a recognized certifying body in emergency medicine;
• Have been in the active clinical practice of emergency medicine for at least three years (exclusive of training) immediately preceding the date of the occurrence, giving rise to the case. A physician serving as an expert witness who is not currently engaged in the clinical practice of emergency medicine should be considered to have met this requirement if he or she was so engaged during the three years immediately preceding the date of the occurrence, giving rise to the case.

Abide by the Following Guidelines

• The expert witness should possess current experience and ongoing knowledge in the area where he or she is asked to testify.
• The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.[2] The key to this process is a thorough review of available and appropriate medical records and contemporaneous literature concerning the examined case.
• A medical expert’s opinion should reflect the state of medical knowledge at the event giving rise to the case.
• The expert witness should review the medical facts thoroughly, fairly, and objectively and not exclude any relevant information to create a view favoring either the plaintiff or the defendant.
• Expert witnesses should be chosen based on their experience where they provide testimony and not based on offices or positions held in medical specialty societies unless such positions are material to the witness's expertise.
• An emergency physician should not advertise or solicit employment as an expert witness where such advertising or solicitation contains false or deceptive representations about the physician’s qualifications, experience, titles, or background.
• The expert witness should be willing to submit the transcripts of depositions and testimony to peer review.
• An expert witness should never accept any compensation arrangement contingent on the litigation's outcome.
• Misconduct as an expert, including providing false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.
• Be familiar with the local state law, regulations, and practice of emergency medicine and strictly adhere to the state-specific definitions of negligence.

Enhancing Healthcare Team Outcomes

The medical records are the responsibility of the healthcare team of nurses, technicians, paramedical staff, medical residents, consultants, and attending physicians or surgeons. Medical documentation must be accurate, complete, and timely. Continuity of care should be documented, even if these discussions are informal. Any discussions between members of the healthcare team should be reflected in the medical record to establish that there has been communication and coordination of care.