Statement on the Physician Acting as an Expert Witness
One of the most important and controversial figures in malpractice litigation is the physician expert witness. The number of malpractice suits and the size of awards for damages have grown substantially in recent years, greatly increasing demand for “expert witnesses.” The increasing number of expert witnesses has engendered the need for clear definition of their qualifications and guidelines for their behavior. The American Association for Thoracic Surgery has adopted the following statement of qualifications for expert witnesses and guidelines for behavior of AATS members when acting as experts in the legal system. These qualifications and guidelines apply equally to AATS members rendering expert opinions prior to the initiation of litigation.
I. QUALIFICATIONS FOR THE PHYSICIAN WHO ACTS AS AN EXPERT WITNESS:
- The physician expert witness must have a current, valid, and unrestricted license to practice medicine in the state in which he or she practices.
- The physician expert witness should be a diplomate of a specialty board recognized by the American Board of Medical Specialties, as well as be qualified by experience or demonstrated competence in the subject matter of the case.
- The specialty of the physician expert witness should be appropriate to the subject matter of the case.
- The physician expert witness must be familiar with the subject matter of the case and the relevant standards of care at the time of the alleged occurrence and have been actively practicing thoracic surgery at the time of the incident and leading up to when the litigation occurred.
- The physician expert witness should be able to demonstrate evidence of continuing medical education relevant to the specialty and the subject matter of the case.
- The physician expert witness should be prepared to document the percentage of professional time spent 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 in medical liability actions, for either patients or physicians.
II. GUIDELINES FOR BEHAVIOR OF THE PHYSICIAN ACTING AS AN EXPERT WITNESS:
Physicians have an ethical obligation to be impartial in legal proceedings, to refrain from adopting positions as advocates or partisans, and to testify for both plaintiffs and defendants.
- The physician expert witness should review all the relevant 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, honesty, and balance.
- The physician expert should not fail 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).
- Within a reasonable period of time prior to providing testimony, the physician expert witness should review the standards of practice prevailing at the time and under the circumstances of the alleged occurrence, including the relevant medical literature.
- The physician expert witness should 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. If afforded the opportunity, the physician expert witness must fully discuss important alternate methods and views.
- Compensation of the physician expert witness should be reasonable and commensurate with the time and effort given to preparing for deposition or court appearance. It is unethical for a physician expert witness to link compensation to the outcome of a case.
- The physician expert witness is ethically and legally obligated to tell the truth and not to mislead or deceive by act or omission. Expert opinions, including statements rendered prior to the initiation of litigation, transcripts of depositions, and courtroom testimony, are subject to independent peer reviews. Moreover, the physician expert witness should willingly provide transcripts and other documents pertaining to the expert testimony to independent peer review if requested by his or her professional organization.
Making false, misleading, or deceptive statements exposes physician expert witnesses to risks of criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of their professional licenses. Violation of these guidelines may lead to disciplinary action by the AATS. (See Article IX of the AATS By-laws.)
Adopted by AATS Board of Directors, May 2008