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Expert witness testimony tricky

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., professor and head of dermatology, Loma Linda University, Loma Linda, Calif.

Dr. Torres explains that in the past, the courts responded to physician reluctance to testify as expert witnesses with rulings that redefined who could serve as an expert and giving privileges of witness immunity. According to some courts, an expert witness in certain circumstances would not need to be a specialist, and could even be considered an expert based on study rather than actual experience. Further, to prevent testimony distortion by the fear of subsequent liability, an expert would be protected against defamation actions and retaliation suits.

Swinging pendulum

"With this new latitude and enticed by the opportunity for financial gain, the pendulum swung in the other direction such that more physicians are increasingly willing to serve as expert witnesses," Dr. Torres says.

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 tells Cosmetic Surgery Times.

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

The American Medical Association (AMA) has 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 or other medical societies should help provide a national expert witness clearinghouse. This could represent a win-win situation in many respects.

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

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