Expert Witnesses: Are the Guidelines Acceptable?

In 1886, A.F. Holt wrote the classic article on providing expert testimony in a court of law, stressing the importance of providing information in the best light for the patient. Today, expert witness testimony is invaluable to juries, helping them make sense of medical events when physician negligence alleged. Expert witness testimony can be controversial. Attorneys hire and almost always compensate experts to provide testimony that will advance their client’s case. This raises the specter of impartiality. Defendants’ and plaintiffs’ expert witnesses often provide opposite opinions on straightforward topics.

Surgeons from several leading medical schools in the United States gathered expert witness guidelines among major surgical societies for review. They looked for gaps in the standards to stimulate discussion about areas for improvement. Their review, published in the November 2014 issue of Otolaryngology—Head and Neck Surgery, provides an educational look at the surgeon’s role in the judicial system.

The authors report that 8 surgical societies have accessible guidelines. None of them include specific compensation guidelines or limits, instead indicating that compensation should be reasonable and reflect the surgeon’s time and effort. Only 3 guidelines encourage expert witnesses to disclose any compensation, although attorneys often ask expert witnesses if they are being paid during court testimony. The authors note that this omission could encourage misbehavior from career expert witnesses.

Three organizations offer expert witness training. These modules describe basic tenets such as the importance of providing impartial testimony.

Five societies offer accessible expert witness affirmation statements that while not mandatory, highlight guidelines and acceptable witness behavior. Participation in this process may increase an expert’s credibility. Surgeons who affirm their commitment indicate they are committed to providing appropriate expert testimony.

None of the guidelines provide detailed reporting mechanisms regarding unethical behavior by legal professionals, or address the appropriateness of an expert testifying frequently and exclusively for one side.

The authors note that strengthening the formalized grievance process within professional societies could help reduce controversial and grossly inaccurate testimony. They also indicate that encouraging members to sign an affirmation statement would do so as well.