Expert witness testimony tricky

May 1, 2006

According to some courts, an expert witness in certaincircumstances would not need to be a specialist, and could even beconsidered an expert based on study rather than actual experience.

San Francisco - Understanding of relevant legal and ethical rules is the best way for physician expert witnesses to protect themselves and the public, according to Abel Torres, M.D., J.D., speaking at the 64th Annual Meeting of the American Academy of Dermatology (AAD), here.

Swinging pendulum

In response to that situation, the courts are imposing new restrictions on expert testimony and have ruled immunity is not absolute - even defining liability of expert witnesses for negligent performance, allowing suits by the people who hire them.

"It is somewhat scary for physicians that expert witnesses can also face revocation of license or specialty certification because of an ethical violation. Furthermore, if involved in abuse of process or malicious action, expert witnesses can be sanctioned by the courts," Dr. Torres explains.

Confronting the possibility of these actions, it is important physicians understand pertinent legal limitations on expert witnesses and ethics rules.

Codes should be the guide

Dermatologists serving as expert witnesses should familiarize themselves with the AAD medical ethics code.

Recently revised in December of 2005, it states dermatologists have a community responsibility to be expert witnesses and should be appropriately qualified and unbiased, give scientifically correct and clinically accurate testimony, and not testify on matters about which they are not knowledgeable. The code also states it is unethical to accept compensation that is contingent upon the outcome of the litigation and that AAD members must follow the AAD principles of professional conduct (no. 13) and the guidelines on expert witness (P-14 200).

The American Medical Association (AMA) also has similar guidelines for physicians acting as expert witnesses, but, importantly, also outlines differences in the roles of treating and non-treating physicians.

"Most states also have a protocol between the AMA and the state territory law society concerning the relationship between doctors and lawyers, and it would behoove anyone serving as an expert witness to be familiar with that," Dr. Torres says.

A solution for stability?

Recognizing the possibility that history might repeat itself so that the pendulum swings back to where physicians are again afraid to be expert witnesses, Dr. Torres puts forth the idea that the AMA, AAD or other medical societies should help provide a national expert witness clearinghouse. This could represent a win-win situation in many respects.