Distinguished Panel Deliberates Expert Witness Testimony

Chicago—As medical malpractice lawsuits have become increasingly standard fare in the United States judicial system, providing expert witness testimony has become something of a cottage industry in the medical and scientific communities. When medical professionals take the stand to provide “expert” testimony, however, they are not only representing their own reputations, but their specialty and, indeed, the entire medical profession as well. To discuss some of the issues involved when physicians take the stand, a special panel was convened bu the Triological Society at the 2006 Combined Otolaryngology Spring Meeting (COSM).

“It won’t do us any good to talk about the tort system and why it’s flawed. It is what it is and we have to live with it,” said Gerald B. Healy, MD, who served as moderator for the panel discussion. Dr. Healy is Otolaryngologist-in-Chief at Children’s Hospital in Boston, Mass., and Professor of Otology and Laryngology at Harvard Medical School. “But the issue of expert testimony is one where we can impact the system, particularly as it impacts physicians and the practice of medicine.”

The same ethical and professional standards which govern the way physicians practice medicine also follow them into the courtroom.

Medical Ethics in the Courtroom

Of utmost concern, said Dr. Healy, and a message that must be delivered to all physicians who take on the role of expert witness, is that the same ethical and professional standards which govern the way they practice medicine also follow them into the courtroom.

The American College of Surgeons (ACS) is one of the many medical associations that have strict mechanisms in place that address expert witness issues.

“If you say you are an expert witness, then you need to be one,” said panelist L.D Britt, MD, Brickhouse Professor and Chair of Surgery at Eastern Virginia Medical School in Norfolk and Chair of the ACS Central Judiciary Committee. “As an expert witness, on the plaintiff or defense side, you are ethically and legally obligated to tell the truth. If you’re going to wear the FACS brand, you must be able to defend your testimony or you could face disciplinary action, from admonition all the way to license revocation.”

Attorney Edward Hinchey, a partner at the firm of Sloan & Walsh in Boston and a specialist in malpractice defense, appreciates organizations like ACS that are taking proactive positions on expert witness testimony. Because, if they weren’t, nobody would.

“Most states have no requirements for expert witnesses, other than that they are breathing and have an opinion,” Mr. Hinchey said. Courts and states are beginning to work together, he noted, to define requirements that expert witnesses in any given case must meet and the parameters under which they are allowed to testify.