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How to be great expert witness
Doctors and lawyers. Respected, intelligent, highly competitive. The perennial cats and dogs of the professional world. Despite their long-running rivalries - which group enjoys a better reputation, who endures more scholarly training, does art or science prevail? - when a physician is called to be an expert witness in a court of law, the two professions must work together, and should complement one another’s knowledge and skills.
For a physician, serving as an expert witness may or may not be a voluntary activity. For example, a physician may be asked to provide an opinion on the standard of care provided to one of his patients by a previous physician who is now being sued. On the other hand, when a physician was “never the treating physician at all” but is asked to testify based on a specific area of expertise, that is “the pure expert situation,” according to Jim McClendon, an attorney with Hilgers & Watkins, PC, in Austin, Texas.
See both sides
Regardless of how they end up on the witness stand, it is the knowledge of medicine, and often a particular specialty area, that is the common link among all expert medical witnesses. Specialties that tend to have frequent involvement in legal proceedings include OB/GYN, neurology, radiology, orthopaedics, and surgery. Says Diane D’Aiutolo, a partner with the Baltimore-based law firm Tydings and Rosenberg, LLP, “Ultimately, the person I want to put in front of a jury is someone who can both explain the medicine to a jury, and who is going to come across as the kind of doctor the jury would love to have treating them.”
Those involved in preparing expert witnesses for trial agree that, if a physician plans to offer his services on a regular basis, he or she should do work for both defense and plaintiffs’ cases. “A physician who only testifies for one side or another will quickly get a reputation...and that will be brought out in front of the jury,” says D’Aiutolo. “The most effective witness will say ‘I’ve reviewed cases and testified for both sides.’”
Michael Kell, MD, PhD, and founder of the Expert Witness & Consulting Group in Atlanta, agrees: “The best expert is somebody who does both. Science is science and the facts are the facts, and sometimes there might be other ways to look at it. You have to be willing to entertain all the ways.”
McClendon concurs, but adds that physicians often find it difficult to testify against one another. “If you are testifying for the defense, my perception is that you would be well received within the physician community. If you are...saying that you think another doctor did something wrong, you run into the ‘conspiracy of silence’ where many doctors are afraid to criticize their brethren. If you can maintain a balance of cases, that’s good, although I know a lot of doctors still remain concerned” about that issue.
This concern is not lost on attorneys who hire medical experts. “I have found that usually plaintiffs’ attorneys will get a physician who is not from the local market,” says D’Aiutolo. “I expect because it makes the physicians more comfortable.”
People, get ready
Attorneys and physicians agree that the best expert witnesses have done their homework. “If you go in there and don’t understand the system, you’ll get crucified,” warns Kell.
Generally, he says, there hasn’t been any formal training for becoming a medical expert, although that is beginning to change. He points to new continuing medical education courses and several books that focus on the “how-to” aspect of expert witnessing. “These books will give examples of cases, what kinds of questions people ask, advice that you should follow at all times,” says Kell. In addition, there are moves to bring additional credibility to expert medical witnesses. “There is a group called the American Academy of Forensic Medicine,” he continues. “It’s not just medical experts, it’s a parent body that’s trying to bring some rhyme and reason” to the field.
McClendon says he would direct an expert witness in need of training to pamphlets or videotapes produced by bar associations or trial lawyers groups. “Reviewing something along those lines can be very helpful if a physician has never been on the witness stand before,” he says.
D’Aiutolo confirms that preparing for trial is key. “I want somebody who is going to have read everything that has been given to them. The only times when I’ve had very bad experiences with physicians...is because they have not spent enough time reading things.”
Once on the stand, consistency is important. “Please do not give me an opinion just because you think I want to hear it,” adds D’Aiutolo. “It would be disastrous if you told me one thing, and five years ago you wrote a paper saying something else. It will come out to the jury.”
Other than some familiarity with courtroom procedures and a firm knowledge of the facts at hand, how much legal experience does an expert medical witness really need? Not much. “You’re hiring somebody to navigate and explain the medical terms. Even the lawyers who do malpractice and personal injury cases day in and day out learn a lot of medicine, but we’re still not medical doctors.”
McClendon agrees that it’s a thoughtful, careful presentation of the medical information that is most effective. “Speak in very simple terms, use examples and analogies so the jury can understand,” he suggests. “Don’t give the jury too much information. Present two or three really good concepts - don’t try to convey 20 or 30 things.”
Get the word out
If you are called to testify as an expert based on specific knowledge or involvement in a particular case, it can happen anytime. If, on the other hand, you choose to offer your services, you decide when and how to do it.
Keep in mind that the most credible witnesses maintain an active medical practice. Some states require that a physician be actively involved in the area of medicine the case focuses on within the past five years; others simply require a physician be licensed in the specialty in question. If a physician is not a recently-active practitioner, “it only goes to the weight of their testimony and not the admissibility,” says McClendon. In other words, the physician’s testimony is acceptable, but it won’t make as strong a case. “You have to have an active practice and do this on the side because you like it,” he adds.
The retired physician is an exception, and can be “a very likeable witness if they have spent 40 years in their career and they were recognized in their field,” explains D’Aiutolo. “You would not often go to the well of an expert who has quit his previous profession to make a living testifying.”
If you decide, however, to make part of your living testifying, how should you go about letting people know? As anyone entering a new field knows, experience helps. “Word of mouth and who you have seen testify are the number one ways” to find good expert medical witnesses, says D’Aiutolo. “The second way is by doing research in the field.” For example, if a case involves pediatrics, D’Aiutolo recommends using the Internet to find out who is doing related research, or calling a respected medical or teaching institution and asking for a recommendation from the pediatrics department.
“I think the least effective way is probably the most obvious,” she adds. “Contacting lawyers and telling them you want to be an expert witness by mass mailing is not an effective tool. That’s not the person I’m looking for.”
McClendon takes a different view. “I would do a letter [to local medical malpractice attorneys] enclosing my resume and letting them know of my services and availability and my expertise,” he says.
Some potential expert witnesses are taking a more direct approach. “Because of our Web site, we’ll get e-mails from people who are interested,” says Kell. “Usually they’re younger people, earlier in their careers.” Generally, he adds, his consulting group hires medical experts based on recommendations and past testifying experience.
Kell says his introduction to the world of expert witnesses was swift; he recalls getting a case to review the day he got out of medical school. He founded his business to create a line of communication between physicians and attorneys, and to prevent people from “misusing the science and the literature to be partially true.” To Kell, “being an expert is a pretty serious thing. You’re trying to maximize the possibility that fairness is going to exist.” That’s something both doctors and lawyers can surely agree on.
Joanne Tetrault, director of editorial services at Physicians Practice, can be reached at email@example.com.
This article originally appeared in the July/August 2001 issue of Physicians Practice.