Expert witness
Legally Speaking
Clifford Warren Lober, MD, JD, presents legal dilemmas in dermatology every other month. He is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.
By Clifford Warren Lober, MD, JD, April 1, 2019
Question: Why do we need expert witnesses?
Answer: Except in rare cases in which negligence is so overt that even a lay person can clearly perceive the negligence, medical malpractice is viewed by the courts as being so complex that experts are required to clarify and explain the situation to a jury (or the judge in a bench trial). Many states require that, before filing a claim of medical malpractice, the plaintiff must get the written, sworn opinion of an expert in the same or similar field to that of the defendant attesting that the latter breached the standard of care and caused the injury alleged.
Q: What makes someone qualified to be an “expert witness”?
A: In medical malpractice cases, the courts typically require an expert witness to be a “similarly situated” health care provider, who by training, knowledge, and experience, is qualified to evaluate the issues in the case.
Q: Do expert witnesses have to be board certified?
A: Not necessarily. However, if the defendant is board certified in a specialty (such as dermatology) or subspecialty (such as dermatopathology or pediatric dermatology), using an expert witness who is not similarly certified leaves the door open for the defense attorney to challenge the qualifications of the expert. Many states mandate that if the defendant is a specialist, the expert witness must specialize in the same specialty or a similar specialty that includes the evaluation, diagnosis, and treatment of the medical condition which is the subject of the litigation.
Q: Does an expert witness have to be licensed in the state in which he or she renders an opinion?
A: Although some states impose this requirement, most states do not mandate that an expert be licensed by the state in which he or she offers an opinion. Courts focus on the expert’s training, knowledge, and experience. It is generally preferable, however, to have the expert licensed in the state in which he or she will offer their opinion to avoid the appearance of being a “hired gun.” The jury may wonder why the defense was not able to obtain or did not choose an expert from their own state.
Q: Do all states have requirements for a physician to be considered an expert witness?
A: There is great variation among the states concerning the qualifications to be an “expert.” Some states require that an expert hold a valid state license, be certified in the specialty of the defendant physician, practice in a “similar community,” or have past or current experience in the field or procedure that is the subject of litigation. More than a dozen states, however, have absolutely no specific requirements. Many states leave it to the discretion of the presiding judge to determine if the individual is an “expert.” As a practical matter, however, juries make their own conclusion as to how much validity should be placed on opinions presented.
Q: Is it better to retain a highly credentialed, well-known academic physician, or a physician whose practice is more community-based and perhaps more similar to the defendant physician?
A: Most academic physicians obtain their patients from their surrounding community and most community-based private practice specialists are well-grounded academically. The defense will want an expert who is clearly well respected and qualified in his or her area of expertise, but who can relate well to and be respected by the jury. While being prominent in the profession is certainly desirable, it is critical that the jury feels that the expert understands the standard of care as applied in their community and places confidence in his or her opinions.
Q: Isn’t the standard of care national? After all, physicians read the same journals, attend the same conferences, etc.
A: While that is generally correct, a jury may be more receptive to the opinions of a practitioner whose practice is similar to that of the defendant physician. Juries may also consider local circumstances or factors, such as the availability of specialized facilities or equipment.
Q: Can a physician be an expert witness in a case of alleged negligence by a nurse practitioner or physician assistant?
A: This will vary from state to state. In many states, the law requires that the expert be a “similarly situated provider.” In those states a physician may or may not be allowed to testify against a nurse practitioner or physician assistant depending upon how the term “similarly situated provider” is interpreted under a given state’s statutes and case law. In other states, however, the expert witness is simply required to be familiar with the standard of care of the nurse practitioner or physician assistant and these states, therefore, permit physicians to provide expert testimony against other health care providers.
Q: Can the defense attorney retain more than one expert witness?
A: The defense attorney can retain multiple experts. However, it varies from state to state whether multiple experts can testify at trial to the same issue(s). Defense attorneys often retain multiple medical experts each of whom testifies to a different issue in the case, thus avoiding the “one expert” rule. Furthermore, non-medical experts such as rehabilitation specialists, economists, or vocational experts may be retained and testify at trial to strengthen the defense’s arguments.
Q: What is the difference between a fact witness and an expert witness?
A: A fact witness is usually only allowed to testify to facts that he or she directly observed, such as something the witness saw or heard personally. An expert witness is permitted to render opinions or inferences within the area(s) in which he or she has been accepted by the court to be an expert based upon his or her training, knowledge, and experience.
Q: Are other physicians who have treated the patient considered expert witnesses?
A: Treating physicians are generally exempt from the “one expert” rule since they acquired their knowledge from direct contact with the patient and not for the purpose of rendering an opinion in litigation.
