[ST-8] Statement on the Physician Expert Witness

[by the American College of Surgeons]

One of the most important and controversial figures in malpractice litigation is the physician expert witness. With the increasing number of malpractice suits in the country--and the growing size of awards for damages--the number of available "expert witnesses" has greatly increased in the past few years. In response to the need to define the recommended qualifications for the physician expert witness and the guidelines for his or her behavior, the Professional Liability Committee of the American College of Surgeons has issued the following statement. The statement is an adaptation of guidelines developed by the Council of Medical Specialty Societies and several other medical groups.

I. Recommended Qualifications for the Physician Expert Witness

A. The physician expert witness must have a current, valid, and unrestricted license to practice medicine in the state in which he or she practices.

B. The physician expert witness should be a diplomate of or have status with a specialty board recognized by the American Board of Medical Specialties, as well as be qualified by experience or demonstrated competence in the subject of the case.

C. The specialty of the physician expert witness should be appropriate to the subject matter in the case.

D. The physician expert witness should be familiar with the standard of care provided at the time of the alleged occurrence and should be actively involved in the clinical practice of the specialty or the subject matter of the case during the time the testimony or opinion is provided.

E. The physician expert witness should be able to demonstrate evidence of continuing medical education relevant to the specialty or the subject matter of the case.

F. The physician expert should be prepared to document the percentage of time that is involved in serving as an expert witness. In addition, the physician expert should be willing to disclose the amount of fees or compensation obtained for such activities and the total number of times the physician expert has testified for the plaintiff or defendant.

II. Recommended Guidelines for Behavior of the Physician Expert Witness

Physicians have an obligation to testify in court as expert witnesses when appropriate. Physician expert witnesses are expected to be impartial and should not adopt a position as an advocate or partisan in the legal proceedings.

A. The physician expert witness should review the medical information in the case and testify to its content fairly, honestly, and in a balanced manner. In addition, the physician expert witness 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.

B. The physician expert should be prepared to distinguish between actual negligence (substandard medical care that results in harm) and an unfortunate medical outcome (recognized complications occurring as a result of medical uncertainty).

C. The physician expert witness should review the standards of practice prevailing at the time of the alleged occurrence.

D. The physician expert witness should be prepared to state the basis of his or her 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 field. The physician expert witness should be prepared to discuss important alternate methods and views.

E. 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.

F. 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 reviews. The physician expert witness should be aware that failure to provide truthful testimony exposes the physician expert to criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of his or her professional license.

Statements

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Reprinted from Bulletin of the American College of Surgeons
Vol. 85, No. 6, Page 24, June 2000

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