The Trials of Providing Expert Witness Testimony
What You Need to Know
After 20 years of practice, you decide you'd like to serve as an expert witness in a court of law. And you wonder if your malpractice insurance will cover you for conducting independent medical examinations and testimony.
Before agreeing to provide expert witness testimony, AAN members would be well-served to carefully review the Academy's “Qualifications and Guidelines for the Physician Expert Witness,” which provides its members with guidance on what constitutes ethical expert witness testimony. The guidelines are posted online at www.aan.com/globals/axon/assets/2687.pdf.
Among requirements, the AAN guidelines specify that a neurologist must have a valid and unrestricted medical license to practice medicine, specialty training, and experience or demonstrated competence in the particular case's subject matter in order to testify as an expert witness.
Evidence of competence can be based on active clinical practice, relevant publications in medical journals, and active teaching or supervision of medical students, residents, or fellows, according to the Academy guidelines.
“Whether a court allows testimony from a retired or inactive physician will ordinarily turn on whether the physician can provide relevant and reliable (that is, competent) testimony on the particular issue involved,” explained H. Richard Beresford, MD, JD, professor of neurology at the University of Rochester School of Medicine and adjunct professor of law at Cornell Law School. “A physician who is not in clinical practice may have difficulty meeting this test unless he or she has only recently retired or has special expertise about a matter at issue.”
But how rigorously an expert is tested regarding his expertise before testifying differs from court to court, he said. The awareness by trial judges that some putative experts are ‘hired guns’ and prodding from appellate courts to assess their competence provides an impetus to stringently assess their qualifications.
When testifying, neurologists should provide evidence-based and clinically accurate opinions, Dr. Beresford said, and “not offer opinions to lawyers or courts that they would not dare to express to their professional peers.”
“Your role is to explain the medical issues in the case, so don't testify in cases that are outside your area of expertise,” advised Dan Larriviere, MD, JD, assistant professor of neurology and law at the University of Virginia in Charlottesville, VA, who is also chair of the AAN Ethics, Law and Humanities Committee.
“Make sure your conclusions are supported by your interpretation of the facts of the case and not the lawyer's interpretation of the facts of the case. Be honest on cross-examination, even if you think it might be damaging to the lawyer who hired you,” Dr. Larriviere said.
If testimony is biased or potentially misleading, a judge can exclude the testimony from evidence, said Dr. Beresford.
AAN members who provide improper testimony are subject to disciplinary action by the Academy. For example, they could receive a private or public reprimand, or be suspended or expelled from membership in the Academy. The last two are reportable to the National Practitioner Data Bank.
Dr. Larriviere said “Lying under oath is obviously wrong, no matter who is reviewing it. But advocating (instead of merely educating the members of the jury about the relevant medical issues) for the party that hired you must be determined in context. The line between a witness who explains the medical issues in the case and one who staunchly defends a stated position despite evidence to the contrary is sometimes difficult to draw.”
In addition, he said, improper testimony may provide an opposing attorney with the ammunition he or she needs to question the witness's credibility or status as an expert (which would prevent him from offering testimony at all).
According to AMA Policy H-265.993, physician expert medical testimony should be considered the practice of medicine, and it appears many states agree, said AAN Associate General Counsel John C. Hutchins, JD. He noted that providing improper testimony can result in disciplinary action for unprofessional conduct by the state medical board — either suspension or revoking a medical license — even in states where expert testimony is not expressly considered the practice of medicine.
This is what happened in In re Lustgarten (2006), where the North Carolina Medical Board disciplined a neurosurgeon with an inactive North Carolina license for engaging in unprofessional conduct by misstating facts and the appropriate standard of care in his testimony. The physician sought judicial review of the medical board's decision to revoke his license; the trial court reversed all but one of the board's grounds for discipline, and sent the case back to the board, which then revoked his license for one year. This decision was also appealed by the physician, but it was upheld by the trial court. The physician appealed again, and the state appellate court agreed with the physician that there was a good faith basis for his testimony, and ordered the disciplinary charges be dismissed.
“The liability risks associated with physicians' forensic activities are increasing, because these activities are being scrutinized by courts, licensing boards, and professional societies more than ever,” said Donna Vanderpool, MBA, JD, assistant vice president of risk management at Professional Risk Management Services, Inc. (PRMS, Inc.), and manager of The Neurologists' Program (TNP), the only medical malpractice insurance program designed specifically for neurologists. [Although PRMS is the endorsed insurance provider of the AAN, physicians are encouraged to seek independent advice regarding insurance options.]
Risks associated with expert testimony include civil liability (when a party to the litigation sues the expert witness), criminal liability (when perjury and other crimes have been charged related to an expert's testimony), discipline by licensing boards, and discipline by professional associations, Vanderpool said.
Vanderpool also noted that it is important for neurologists to confirm that their insurance policies actually cover claims and lawsuits related to forensic activities prior to engaging in such activities. Not all policies provide coverage for forensic activities, and no one wants to learn after being named as a defendant in a lawsuit that no insurance coverage is available.
Some, but not all, malpractice policies provide coverage for defending disciplinary actions by a state medical board, Vanderpool added, so neurologists should inquire about defense coverage for such actions. (The TNP policy covers civil liability related to forensic activities and limited defense coverage for disciplinary actions.)