ACCP Guidelines for an Expert Witness
When called upon on behalf of either defendants or plaintiffs, physicians have an obligation and a duty to participate in the justice system as expert witnesses. It is in the public interest that medical expert testimony be readily available, objective, and unbiased. Physicians are therefore obliged to maintain objectivity, integrity, truthfulness, and to testify in accordance with relevant facts in each case. Experts are expected to assist courts and juries to understand what are accepted standards of medical practice.
The medical community, however, cannot condone participation of physicians in legal actions that impugn professional activities that fall within accepted standards of medical practice. Experts cannot use individual interpretations of standard practices to the exclusion of other acceptable alternatives. It would, thus, be unethical for any “expert” to provide testimony that does not adhere scrupulously to objective interpretations of acceptable standards of practice.
Advances in health care and health care delivery are given considerable publicity. As a consequence, the public often develops unrealistic expectations for health care – in conjunction with a poor understanding of associated risks. Medical “maloccurrences” are often mistaken for medical malpractice. Medical maloccurrence should be defined as “less than ideal outcome care despite reasonable delivery of quality care within acceptable standards of practice.” Some medical and surgical complications can be anticipated; these represent unavoidable complications or side effects of disease or treatment procedures. Other maloccurrences are unanticipated – less desirable outcomes may result even though physicians and fully informed patients carefully assess options and reach decisions and judgments carefully.
In medical malpractice litigation “….negligence is the predominant theory of liability. In order to recover from negligent malpractice, the plaintiff must establish the following elements: (1) the existence of the physicians duty to the plaintiff, usually based upon the existence of the physician-patient relationship; (2) the applicable standard of care and its violation; (3) a compensable injury; and (4) a casual connection between the violation of the standard of care and the harm complained of.” It is unethical for a medical expert to distort or misrepresent a maloccurrence as medical malpractice, and vice versa.
With this background in mind, the following recommendations are offered as guidelines for physicians expert witnesses.
- The physician/witness must have a valid, unrestricted, current license to practice medicine in the state in which he or she practices.
- The physician/witness should be trained in a specialty and qualified as an expert in the area in which he or she is testifying. He or she should be able to demonstrate scholarly activity in this area by virtue of evidence of continuing medical education.
- The witness should be familiar with the details of the case in which he or she is testifying, and should be aware of the standards of medical practice as they relate to the case and the locale.
- The witness should receive compensation that is appropriate to his or her expertise and qualifications. Acceptance of a fee that is disproportionate to those customary for such profession endeavors is improper and unethical, and could be misconstrued as influencing testimony given by the witness. It is unethical for an expert witness to accept compensation that is contingent upon the outcome of litigation.
- Compensation for expert testimony should be a minimal part of the physicians total yearly income – the physician expert witness should not be a “professional expert witness.”
- They physician’s testimony should be fair, truthful, objective, and one of integrity; it should not exclude any relevant information in order to favor one of the adversaries.
- To establish consistency, the expert witness should make records from his or her previous expert witness testimony available to the attorneys and expert witnesses of both parties.
- The expert witness should be willing to submit transcripts of prior depositions and courtroom testimony for peer review.
- The physician/witness must not become a partisan or advocate in the legal proceeding