Physician Expert Witness in Medical Liability Suits

Under this nation's system of jurisprudence, it is recognized that an essential element of proving medical negligence is establishing that the defendant has breached a standard of care owed to the plaintiff. The courts have relied on the testimony of expert witnesses to establish what the standard of care is in a given situation and whether that standard of care has been met. The American Academy of Family Physicians recognizes and supports the concept that physicians have an ethical responsibility to assist in the administration of justice and that it is in the best interest of the public that expert medical testimony, which is objective and impartial, be readily available. It is the opinion of the American Academy of Family Physicians that the probability of achieving equitable outcomes in medical liability suits will be enhanced if the following guidelines concerning expert witnesses are observed:

  1. It is the responsibility of the physician expert witness in a medical liability case to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable injury and/or damages. The physician expert witness should be aware that transcripts of depositions and courtroom testimony are public records.
  2. The physician expert witness should not become an advocate or a partisan during the trial and, to the extent possible, the testimony presented should reflect the generally accepted standards within the specialty or area of practice about which the expert witness is testifying. When there is no generally accepted standard of practice or when the expert witness presents testimony that is contrary to the generally accepted standard, the expert witness should clearly identify that fact, as well as the basis for the opinions expressed. Ideally, both the defense and the plaintiff should have at least one witness in the same specialty as the defendant physician.
  3. Prior to testifying, the physician expert witness should become familiar with the facts of the case and the medical standard at issue and should review and understand both the current concepts and practices related to that standard as well as the concepts and practices related to that standard at the time of the occurrence which led to the lawsuit.
  4. Compensation to physicians who testify as expert witnesses should be reasonable and commensurate with the time and effort involved in fulfilling the physician's responsibilities as an expert witness. The acceptance of fees that are disproportionately high relative to the time and effort involved may be interpreted as influencing testimony and should be avoided. Under no circumstances should a physician accept compensation for serving as an expert witness when payment of the compensation or the amount of the compensation are contingent upon the outcome of the case.

In order to ensure the highest possible quality of testimony by the physician expert witness and thereby promote just and equitable verdicts, the Academy believes that all physician expert witnesses should meet certain minimum qualifications. Recognizing that legislative bodies in the various jurisdictions have the authority to establish such qualifications, the Academy supports the enactment of legislation that requires the following:

  1. The physician expert witness must have a current, unrestricted license to practice The physician expert witness should be fully trained in the medical specialty or area of practice about which he or she is testifying.
  2. The physician expert witness must have current clinical experience in the medical specialty or area of practice about which he or she is testifying and during the two-year period immediately preceding the occurrence which led to the lawsuit, such person must have been actively engaged in clinical practice in the medical specialty or area of medicine about which he or she is testifying.
  3. At least one physician expert witness for the plaintiff and one physician expert for the defendant should be in the same clinical specialty as the defendant physician. (1989) (2014 COD)