Expert witness testimony is almost always necessary in medical malpractice litigation because medical malpractice lawsuits are complex. Each medical profession will have different duties owed to patients. Because of this, a member of the same profession is needed to explain to the court what the defending physician should or should not have done under the specific circumstances and whether their conduct constituted negligence.
It’s important to note that expert testimony is based on each individual’s criteria when assessing the physician’s actions and quality of care. Testimonies are essentially expert opinions; some experts might be lenient in their judgments, and others strict.
Courts, state legislatures, state medical boards, and medical professional organizations have scrutinized sworn expert testimony because it may not always be informed, honest, or accurate. Courts are now recognizing medicolegal malpractice liability, which means an expert testifying can become the target of litigation themselves because of their testimony.
We will review the history of expert testimony, immunity of experts, dissolution of immunity, sanctions by licensing boards and organizations, other causes of potential liability, and preparation for testimony.
History of Expert Testimony
Professionals testifying in medical litigation have origins in old English common law. There are records as far back as the 1700s that show expert testimonies supporting claims against professionals. These early proceedings have inspired present-day rules and laws regarding expert witnesses in medical malpractice cases. Someone with extensive knowledge, education, experience, skill, or training can testify as an expert witness to help the court understand and make an informed decision based on scientific and technical facts. Any physician considering serving as a witness should understand they will be expected to give their honest opinion as a professional, not advocate for either side.
Usually, the plaintiff hires an expert to prove negligence and causation, and the defendant hires an expert to determine the physician met the required standard of care and/or didn’t cause injury. Testimony may not be necessary in cases where neglect is obvious, like leaving surgical tools or supplies inside the body or operating on the wrong limb.
Immunity of Expert Witnesses
Historically, courts have been obliging witnesses by granting them immunity from civil liability for things they said on the stand. The concept of witness immunity was established from public concern that testimonies should be unrestricted. There was virtually no accountability for what a witness admitted to in their testimony, apart from cross-examination under oath and prosecution for perjury.
Dissolution of Immunity
Expert witness immunity began getting challenged in the 1970s and 1980s. Over the last 35 years, the demand for experts hired to help with litigation has greatly increased. Concerns were raised that some experts may be “bought” by the highest bidder.
“Wrongful claim review” refers to the possible liability of an expert witness who testifies whether or not the treating doctor committed malpractice. Expert physicians have a medicolegal obligation to remain objective and competent to protect the patient’s legal rights. The standard of care will vary case by case, but it will always be the general level of care provided by other physicians in the same profession under the same circumstances. If it’s determined that an expert acted with skill, knowledge, and care but made an honest mistake, they likely won’t be held liable. However, an expert will be held liable if it’s found that their errors were due to inconsistencies.
Some state courts advocate for the continued dissolution of expert witness immunity, with many courts viewing witness malpractice as an actionable offense. Other courts have also determined that expert witnesses can be held liable for incompetently or negligently prepared testimony.
Sanctions by State Boards
Some have supported that expert witness testimony should be viewed as part of practicing medicine and should be subject to peer review. However, current case law in this area has been inconclusive.
Regulations by Professional Associations
Providing that professional associations act appropriately and don’t go against public policy, courts have allowed them to discipline expert witnesses.
Professional society programs that monitor testimonies have been challenged as unnecessary because judges can exclude evidence and experts if they are deemed negligent or incorrect. There is also the idea that cross-examination of the expert should expose any bias or vested interest. However, cross-examination has its limitations and doesn’t automatically reveal inappropriate testimony.
Additional Sources of Liability
Expert witnesses should be mindful of liability transpiring from a violation of patient confidentiality. Witnesses would be wise to steer clear of all ex parte conversations without the patient’s adversaries present unless such contact has been authorized.
Extent of Liability
The law relating to the professional negligence of a testifying doctor in a medical malpractice case is still too fresh to offer insight into the associated financial risks. It can be inferred that it would be similar to that of legal malpractice- essentially a lawsuit within a lawsuit. In legal malpractice claims, if the attorney is held liable to the client, the client will receive the owed damages in the underlying lawsuit.
If the plaintiff can prove negligent testimony was the reason for the unfavorable outcome, it’s reasonable to assume the financial liability will be measured by the plaintiff’s uncollected damages. In regards to a negligent testifying expert for the defending doctor, a feasible measure of damages might be the averted financial harm the testimony could have caused.
If you need help or information about a medical malpractice expert witness, contact Dr. McNew with Legal Medical Consulting in Dallas, TX.