Expert Witness Testimony: The Ethics of Being a Medical Expert Witness

Emergency Medicine Clinics of North America

Volumn 24, Issue 3, 2006, Pages 715-731

  Andrew, Louise B ^a  

^a Coalition and Center for Ethical Medical Testimony ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CERTIFICATION; COURT; DECISION MAKING; EMERGENCY MEDICINE; EXPERT WITNESS; FINANCIAL MANAGEMENT; HEALTH CARE POLICY; HUMAN; JURISPRUDENCE; LEGAL ASPECT; LICENCE; MALPRACTICE; MEDICAL CARE; MEDICAL EDUCATION; MEDICAL ETHICS; MEDICAL LIABILITY; MEDICAL PRACTICE; PEER REVIEW; PRACTICE GUIDELINE; PRIORITY JOURNAL; PROFESSIONAL MISCONDUCT; PROFESSIONAL STANDARD; REVIEW; UNITED STATES;

EID: 33746279914     PISSN: 07338627     EISSN: 07338627     Source Type: Journal    
DOI: 10.1016/j.emc.2006.05.001     Document Type: Review

References (33)

1. 95 Eng. Rep. 860 (K.B. 1767).
2. FRE 702.
3. Lubet S. Expert witnesses: ethics and professionalism. Geo J Legal Ethics 12 (1999) 465
4. Sullivan W. Standard of care: does it exist in every malpractice case?. ED Legal Letter 14 (2003) 133-144
5. Latest AMA policy on expert witness issues as of this writing can be found at http://www.ama-assn.org/ama/pub/category/8539.html and http://www.ama-assn.org/ama1/pub/upload/mm/465/bot8fin.doc.
6. http://www.acep.org/1,560,0.html.
7. ACEP uses the term "ReAffirmation" because members already affirm all ethics policies when they join or renew their membership. The statement is available at: http://www.acep.org/download.cfm?resource=1024.
8. See AOA. Policy statement on expert witness, for recent compilation. Available at: http://do-online.osteotech.org/pdf/cal_midyr05ressup26ff.pdf.
9. Daubert v Merrell Dow Pharmaceuticals, 509 US 579 (1993).
10. Kumho Tire v Carmichael, 526 US 137 (1999).
11. Although some physicians believe themselves to be eminently qualified to testify after retirement from clinical practice because of their knowledge of the basic precepts of the specialty and the breadth of their experience, what is needed by the courts-education about the prevailing standards of clinical practice-cannot realistically be known by an individual who no longer practices clinically. An ethical expert witness should be actively practicing within his or her field at the time of the incident involved in a claim to be aware of the actual applicable standard of care in effect as of that date. A retired physician might ethically render an opinion about causation, however, as opposed to the prevailing standard of care.
12. Shilkret v Annapolis Hospital Emergency Association, 349 A 2d 245, 249-250 (Md 1975).
13. Peters P.G. Empirical evidence and malpractice litigation. Wake Forest Law Review 37 (2002) 757
14. Meadow, and Sunstein. Statistics, not experts. Duke Law J 51 (2001) 630-631
15. EP Monthly, Standard of Care Project, ongoing.
16. Hartz A., Lucas J., and Crown T. Physician surveys to assess customary care in medical malpractice cases. J Gen Intern Med 17 (2002) 546
17. Wake Forest Law Review 2002;37, No.3. Available at: http://www.law.wfu.edu/x2065.xml.
18. The textbook case basis for this quip is Helling v Carey (83Wn.2d 514,519 P.2d 981), a 1974 Washington Supreme Court case in which, based on their understanding and balancing of the risks and benefits, testing for glaucoma in patients younger than 40 years of age was established by the judge as the medical standard of care. Although Helling has been statutorily overturned in Washington and not followed by other states, an emerging jurisprudence in some states allows the jury to determine what the "reasonable" physician should have done, as opposed to the customary or prevailing practice in the community.
19. http://www.acep.org/1,33422,0.html.
20. http://www.aaem.org/aaemtestimony/caselisting.html#.
21. Which is increasing dramatically in recent years and reportedly can reach $600-1000 per hour in some specialties. Baldas. Nonexperts taking the stand. National Law Journal March 21, 2005. Available at: http://www.law.com/jsp/article.jsp?id=1111572309683.
22. All medical professional ethics codes and legal codes of professional responsibility prohibit this practice.
23. Moss S. Opinion for sale: confessions of an expert witness. Available at: http://www.legalaffairs.org/issues/March-April-2003/review_marapr03_moss.html#.
24. Gross SR. Wisconsin Law Review 1991;1113. This is a classic and comprehensive article on this topic.
25. By FRE 26, providing an accurate record of this history is a requirement for testifying in federal court.
26. See Year of the expert witness. Available at: http://www.ccemt.org/displaycommon.cfm?an=1&subarticlenbr=78.
27. See Sullivan W. Expert opinions: defendants aren't the only ones on trial. ED Legal Letter 2004;15:97-108, and Weiss L. Expert witness malpractice actions: emerging trend of aberration. The Practical Litigator 2004;March:27-34.
28. Maryland, Washington, DC, New York, and on other grounds in Washington state.
29. Andrew L. Lustgarten appeals suspension by NC Medical Board. Available at: http://www.ccemt.org/displayindustryarticle.cfm?articlenbr=19883.
30. Such as the American College of Obstetricians and Gynecologists, American College of Surgeons, American College of Radiologists, American Association of Neurology, and American Society of Plastic Surgeons.
31. ACEP ethics review policies relating to expert witness testimony can be found at: http://www.acep.org/1,4853,0.html.
32. Donald C. Austin v AANS, 253F3d 967 (2001).
33. See Grow B. Expert witnesses under examination, and related articles at: http://www.ccemt.org/displayindustryarticle.cfm?articlenbr=19857.