So You Think You’re an Expert?

Being an expert witness in a medical malpractice case can be daunting, especially when you realize how important your role is. For me, it’s the point when the judge instructs the jury with words like, “When you are deciding whether the physician was negligent, you must base your decision only on the testimony of the expert witnesses who have testified in this case.” A jury relies on expert witnesses’ explanations to reach their conclusion, and in medical malpractice cases, they’re going to need your help to understand the complicated medical information that’s presented by both sides.

The American Academy of Ophthalmology (AAO) have some advice in their Code of Ethics, and Rule 16 (see box below) pertains solely to expert witness testimony. In short, it specifies that testimony must be: based upon sound medical knowledge, objective, non-biased, and not contingent on compensation. If either side feels that you, as an expert witness, have presented false or deceptive information in court, they may submit a complaint against you for review by an ethics committee. Sometimes these cases are very straightforward, sometimes a formal hearing is needed to hear the physician’s side of the story. In extremely complex cases, an ethics committee may call in an outside expert for review. These rulings can go one of two ways: either no problems are found with the expert witness testimony or sanctions are brought against the expert witness.

Approach with caution

I want to share 10 easy ways about how you can get into “hot water” as an expert witness, and how to avoid doing so.

10 – Misrepresenting your training or experience

Misleading the jury with inaccurate claims of expertise is an easy way to get into trouble. For example, if a comprehensive ophthalmologist expert witness sells themselves as an expert in the field of pediatric ophthalmology and is called to provide guidance in a case against a pediatric ophthalmologist, this could be problematic. Don’t misrepresent yourself. 

9 – Allowing personal or competitive issues to bias testimony

As an expert witness, you may come up against people in your local area who you consider to be competitors or who you don’t agree with. Avoid allowing personal relationships or competitive issues to bias your testimony.

8 – Viewing a case with tunnel vision

Your own views on how a specific procedure or case should be handled can cause tunnel vision, meaning the larger clinical picture can be missed. Don’t forget your way isn’t the only ethical or reasonable way of handling a specific situation.

7 – Allowing yourself to be solicited by the attorney

Sometimes you may feel a lot of pressure from attorneys to mold your testimony into their theory of what happened. Don’t let attorneys encourage you to stretch your beliefs and alter your testimony. Sometimes you have to walk away.

6 – Resisting answering truthfully or objectively if the answer is damaging to your side

When you are up on the stand being grilled by the opposing attorney, you can feel bullied. Although a natural response may be to “push back” you can’t let the truth be influenced, no matter how damaging it may be to your side.

5 – Confusing personal opinions with legal standard of care 

The definition of legal standard of care differs in every community. I know we all have our own personal opinions or preferences when it comes to handling a case, but remember, your way is not the only way!

4 – Unwillingness to acknowledge possible maloccurrence

Maloccurrence does not constitute malpractice and therefore does not warrant legal action. We have all had patient cases which haven’t gone the way we wanted, or expected, them to. There are times when testifying where you have to be willing to say “Your Honor, this was just maloccurrence.”

3 – Being unfamiliar with the intricacies of the specialty of concern

Some people are happy to give an expert opinion despite not knowing the subject. But these “expert witnesses” are unable to recognize the nuances of care, and this matters when it comes to defining probabilities versus certainties. You must be willing to acknowledge that there may be specific nuances of a case you aren’t really familiar with.

2 – Underestimating comprehension levels in the courtroom

As a physician, you probably know more about the subject at hand than anyone in the courtroom, meaning you may underestimate the comprehension level of the judge, jury or other side. Make sure that your explanations are clearly and concisely explained and tailored for an audience of non-experts, but don’t belittle the idea that they can come to a reasonable understanding of what is going on.

1 – Accepting compensation contingent on the outcome of a trial

An expert witness who receives a fee for testifying that is contingent on the outcome of the trial is not ethical. This is never acceptable.

Two key principles

Being an expert witness is a challenging experience. If you volunteer for this duty, make sure you are ready to know the case in great detail: that means going through the charts and through every page line-by-line. Above I offer ten things to avoid. Now, I offer two principles that an expert witness must follow throughout the whole process to maintain integrity and protect their reputation: remain truthful and ethical.

Ron Pelton is Chair of the AAO Ethics Committee. He specializes in oculoplastics and facial reconstructive surgery, and runs a solo practice in Colorado Springs, USA.