AMANE KANEKO

Think Twice Before Accepting an Expert Witness Offer

A medical malpractice attorney recently contacted me, asking if I would be interested in reviewing a case. They are looking for a hospitalist “expert witness.” I’ve never done this before and don’t know if I’m qualified. Can you tell me about the benefits and risks of being a medical expert witness?

R. Jones, MD

Miami

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Do you have a problem or concern that you’d like Dr. Hospitalist to address? E-mail your questions to drhospit@wiley.com.

Dr. Hospitalist responds: Most physicians complete medical school and postgraduate training without firsthand knowledge of our legal system. Unfortunately, a number of physicians become defendants in medical lawsuits during their professional careers. I hear with increasing frequency about hospitalists being sued for alleged medical malpractice. I am not surprised. This is not an indictment against hospital HM, but more a matter of probability. There are at least tenfold more hospitalists today than 10 years ago.

To be clear, I am not an attorney, nor do I have any formal legal training. I suggest you speak with an attorney if you have questions about the law.

Laws vary from state to state, but for the most part, plaintiff attorneys and defense attorneys retain expert witnesses to help them determine the merits of a lawsuit. Did the defendant have a duty to treat the patient? Was there a breach of the standard of care? What were the damages, and were they due to the defendant’s actions or lack of action?

Understand that our judicial system holds that a physician in the same field as the defendant is the most qualified to determine whether the defendant met the standard of care. Standard of care is what is reasonably expected of a physician in that field given the circumstances. So if the defendant is a hospitalist, the attorneys are looking for an expert witness who is also a hospitalist. Seems like a reasonable system, right? Individuals are judged by their peers. But the system is far from perfect.

Critics point out the system is inherently flawed when we rely on “experts” to help us determine the standard of care. Aside from working in a given field of medicine, there are no specific qualifications to be an expert witness. Unfortunately, not all experts are experts, and not all experts are completely honest. And there can be a lot of money at stake. Plaintiffs attorneys and defense attorneys, along with expert witnesses for both sides, stand to profit from lawsuits. All of this drives up the cost of medical malpractice premiums.

I will not tell you not to become an expert witness. Until we see real, sustainable tort reform, we have to live with the system. If I am sued, my defense attorney would seek an expert witness’s opinion. If a patient is hurt because of alleged negligence, the patient’s attorney would seek the opinion of an expert witness. So we need honest physicians to provide honest opinions as expert witnesses. This goes for defendants and plaintiffs.

Many expert witnesses find gratification in knowing they helped a patient or a physician. As I mentioned previously, an expert-witness gig can be financially lucrative, but it is not without its drawbacks. Expert witnesses are subject to the code of ethics set forth by the medical society and state board of registration in medicine. Any sworn testimony you provide is discoverable. It is easier than you might think for others (e.g., opposition attorneys) to believe you have contradicted yourself when you give your opinion on the same subject in more than one case. As an expert witness, know that you will be cross-examined by an attorney, either in deposition or at trial. Testifying under oath can be a grueling experience.

Most expert witnesses are reputable physicians in their fields. You should feel honored for being asked to participate as an expert witness, but think carefully before you accept the offer. Understand what is being asked of you before you take on this responsibility. TH