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How to prepare for duty as an expert witness in a medical trial

Article-How to prepare for duty as an expert witness in a medical trial

Key iconKey Points

  • Expert witnesses must be well prepared for often-inclement attacks and hostile litigation
  • To be an expert witness, the physician must know the standard of care
  • Physicians serving as expert witnesses are being paid for their time, not for their opinion

Being an expert witness in a medical legal battle could be a challenging experience for any physician who volunteers for this duty. Knowing the facts of the case in great detail and remaining truthful and ethical throughout the procedure are two principles that a physician must follow in order to complete the task with integrity and reputation intact, according to two physicians familiar with the process.

Dr. Petro
"Working as an expert witness can be a grueling experience, particularly if one is not prepared for the case at hand. It is important that those physicians who seek work as an expert witness fit the bill in terms of qualifying for a particular case by virtue of medical training and experience, licensure and evidence of expertise regarding the nature of the case," says Jane Petro, M.D., plastic surgeon in Mount Kisco, N.Y., and editor-in-chief, American Journal of Cosmetic Surgery.

Though some physicians will get involved in a particular case to uphold the standards of their specialty or to defend a colleague, most physicians will become an expert witness for the challenge and the learning experience the opportunity provides, Dr. Petro says. The expert witness must be well prepared for the often-inclement attacks and hostile litigation from the opposing side, however.

"Your obligation as an expert witness is to really pursue the medical records in excruciating detail, because you have to be prepared if you are going to actually testify on the stand to defend your opinion, even in the face of what can sometimes be quite a brutal personal attack," Dr. Petro says.

It is the job of the opposition to discredit the expert witness, Dr. Petro says, and they often will use any means available to achieve that. Opposition lawyers can also try to discredit the expert witness based on his or her previous testimony, so testimony must be consistent and truthful.

"Physicians who choose to be an expert witness must expect that the opposition will always try to disqualify you as an expert, and they will try to convince the jury that you are lying. This is why the physician must have intimate knowledge of all the facts in the case so that he or she can uphold their reputation and integrity and complete the job unscathed," Dr. Petro says.

Dr. McMenamin
STANDARD OF CARE "To be an expert witness, you must know the standard of care. You must know what the responsibilities are, and just because you may do it differently does not mean that it is a violation. The reason why a lot of people do not want to be or choose not to be an expert witness is because it is unbelievably intense," says Patrick G. McMenamin, M.D., past-president of the American Academy of Cosmetic Surgery and a cosmetic surgeon in private practice in Sacramento, Calif.

During cases that involve patients who were flagrantly harmed, some physicians will serve as a witness because of a personal sense of duty to their profession, Dr. Petro says. But physicians who testify as an expert witness also have a duty to act as an agent for the individual who was cared for in a way that failed professionally, she adds.

Says Dr. McMenamin, "Regardless of which side one works for as an expert witness, it is paramount that one remains fair and ethical. An expert witness is an interpreter of fact and in a way, a preserver of standards."

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