Expert Medical Witnesses: Should You Get Involved? We Plead the Fifth

Sean Johnson
Published: Tuesday, Sep 16, 2008
Expert medical witnesses are in a tricky business. Many physicians are skeptical about getting involved in the practice, and rightfully so. Sermo and other online physician communities are rife with posts and comments from physicians who know colleagues who have stretched the truth or even lied on the stand because of personal beliefs or compensation. Aside from not wanting to get mixed up in legal situations, physicians also have to consider the possibility of unpredictable court times conflicting with their practice hours. To better understand the pros and cons of becoming an expert medical witness, we spoke to three experts in the fi eld: Dr. Scott G. Seidman, Associate Medical Director at American Medical Forensic Specialists (AMFS); Steven Babitsky, Esq, coauthor of several texts on expert witnessing and president of SEAK, Inc, which “provides customized training, seminars, publications, and professional directories for expert witnesses, physicians, attorneys, independent medical examiners, and workers’ compensation professionals;” and Dr. Bruce Livingston, a physician who has also attended law school, and whose company, MedWitness.com, “locates medical experts to review and testify in any type of case involving medical malpractice, personal injury, and disability.”

Be aware of your medical specialty society’s and your state board’s guidelines and code of ethics.

The various professional medical societies and state licensing boards have developed (and religiously enforce) specialty-specific guidelines for expert witness testimony, and if a physician is suspected of providing false testimony, he or she may be disciplined, fined, or even stripped of their license. Seidman says that physicians should always act appropriately on the stand. “When a physician provides expert testimony, it should be with the understanding that this testimony not only may create a future standard of care, but also is, in reality, an extension of that physician’s professional practice of medicine. As such, the same attention to the integrity of the opinions and testimony should be applied as one would exercise in that medical practice.”

Know what to do if unfairly reprimanded by your medical society.

In very rare circumstances, physicians may be unjustly reprimanded by their respective boards for their testimony. The threat of this, plus the close scrutiny on some specialties (especially neurosurgeons and Ob/Gyns, says Livingston), may make some physicians hesitant to testify as expert witnesses. If a physician is reprimanded or punished for his or her testimony, it can follow them around and possibly prevent them from being able to testify after the incident, as they must state this when asked if any prior off enses have been documented. To help prevent this, Livingston provides a service at MedWitness through which physicians can participate in a mock “hearing,” which includes a doctor from the accused physician’s field, a trial lawyer, and other professionals. Livingston explains: “Let’s say a neurosurgeon testifi ed somewhere and the academy found him guilty of improperly testifying—either for the plaintiff or the defendant; now, he has a bit of a black mark. Th e assembly is not a governmental agency, but if someone ever asked this doctor at trial ‘have you ever had anyone ever say you have done anything improper?’, he has to answer. What we off er is a counterbalance; we say ‘let us do it, too, and let us see if we agree with what they found, and we will put a trial on. If we disagree with what’s been found, we’ll issue our fi ndings.’ Th en, if questioned on the witness stand about being found guilty for improperly testifying, that physician can answer ‘yes, but this place also investigated the situation and they found that I didn’t do anything wrong.’” It’s a unique service, and Livingston admits that he has not had many takers yet. He notes that it’s a service people will use only when they are confi dent they have done nothing wrong; physicians who know they might have crossed the line would not be able to exonerate themselves by taking part in such a hearing.

Remember, you will be cross-examined.

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