Members of the medical profession may be asked to testify 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.
Input from medical professionals in legal cases has become increasingly more important and common, and 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.
Medical malpractice law is based on tort and contract law, and it is commonly understood as liabilities that arise from the delivery of medical care. 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.
Of all of the potential liabilities in medical malpractice, medical negligence is the most common. Medical negligence requires that the plaintiff establish the following elements:
Standard of Care
In medical malpractice cases, the defendant’s behavior is compared to the standard of care for that specific situation. The standard of care is most commonly defined as, “that 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.” Nowadays, with the establishment of national boards and greater standardization of practice, there is less local variability. The exception is the access to care and health care facilities in underserved or rural areas.
The question of whether there was a deviation from the standard of care, is often the most important role of the expert witness in medical liability cases. If it is determined that a deviation from the standard of care has occurred, 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.
Medical Errors Compared to Medical Negligence
There are several possible outcomes from a medical intervention; the condition improves, the condition worsens, and the condition remains unchanged. A deterioration in the patient’s condition does not necessarily indicate medical negligence. The three above outcomes are possible with appropriate care and treatment. Medical negligence cannot be determined solely from an unexpected result, a bad result, a failure to cure, a failure to recover or any other situation which might indicate a lack of success of the intervention or care.
Burden of Proof
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 provided by the defendant.
In the United States judicial system, the expert witness has an essential function in determining medical negligence. The role of the expert witness testimony in medical malpractices cases is three-fold. The expert witness is called on to establish the standard of care applicable to that specific case. The expert is then asked to provide an opinion regarding whether there was a deviation from the standard of care. Lastly, if it has been determined that there was a deviation from the standard of care, the expert witness may be asked to offer an opinion as to whether that deviation from the standard of care could have resulted in the cause of the patient’s alleged injury.
Processes of Expert Witness
The involvement of the expert witness in medical malpractice cases can take many different forms. The expert witness may be used to evaluate the merits of a claim before filing legal action. The expert witness may be asked to review the case and the medical records and provide a written opinion regarding the standard of care, deviation from the standard of care. If the case continues, the expert will most likely be required to be deposed. During a deposition, the expert witness provides recorded testimony, under oath, to the questions of attorneys from both sides. If the case goes to court, the expert witness will be required to provide testimony, under oath, to the judge or jury.
The judge and jury rely on the expert witness to clarify the medical standards. Therefore the testimony should be clear, coherent, and consistent with the standard of care applicable at the time of the incident.
The testimony of the expert witness is often a crucial component of a medical malpractice case. Therefore, the testimony must be objective, accurate, reliable and an appropriate analysis of the standard of care. One of the greatest concerns among the legal community regarding expert witnesses is that not all experts provide testimony that is ethical and supported by the scientific basis of medicine.
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.
To ensure the highest quality and appropriate expert witness testimony, some professional medical societies have published recommendations or guidelines for expert witnesses in these specific medical specialties.
Examples of expert witness guidelines are provided below.
The expert witness plays an important role as an educator, both for the attorneys and for the judge and 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 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 any 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 case than they would have without the expert’s testimony.
Example Society Recommendations
Expert Witness Recommendations from the American Academy of Pediatrics (AAP)
Advocacy and Education
The AAP believes that the establishment of certain 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:
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.
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:
Standards of Care
The physician expert witness should be familiar with the medical standards at issue 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.
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 at issue. Thus, medical expert witnesses should:
Ethical Business Practices
The business practices (e.g., marketing, contractual agreements, and payment for services) associated with the provision of expert witness testimony must be conducive to remaining nonpartisan and objective throughout the legal proceedings.
Expert Witness Guidelines for the Specialty of Emergency Medicine from American College of Emergency Medicine
To qualify as an expert witness in the specialty of emergency medicine, a physician shall:
Abide by the following guidelines:
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