The Perils of Being An Expert Witness

September 10, 2009

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Note: This article does not constitute legal advice and is not intended to be used as a substitute for specific legal advice or opinions.—AAN.com

By Donna Vanderpool, MBA, JD

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Courts, government agencies, and professional organizations are demonstrating an increasing interest in holding physicians accountable for expert witness testimony. This article will provide an overview of three categories of liability exposure for expert witness activities: malpractice lawsuits, discipline by licensing boards, and discipline by professional organizations. There are other related consequences (such as National Practitioner Data Bank reporting), and other types of litigation (such as defamation, breach of contract, and perjury) that are not addressed in this article.

Malpractice Lawsuits

In terms of being named a defendant in a civil lawsuit based on expert witness testimony, witness immunity generally provides immunity from liability for statements made in judicial proceedings. However, this immunity cannot be relied upon as an absolute bar to liability, as some courts have allowed malpractice actions against expert witnesses. There have been a few cases allowing a party to sue their own "friendly" expert. Courts are even less likely to find malpractice liability if the expert witness was sued by the opposing side, because the "adverse" expert witness owes no duty to the adversary.

Discipline by Licensing Board(s)

Providing expert testimony is generally considered the practice of medicine, subjecting the expert witness to oversight by the state medical board—such as discipline for unprofessional conduct, determination of when state license is required, and determination of standards for expert testimony.

Unprofessional Conduct: According to the Federation of State Medical Board's "A Guide to the Essentials of a Modern Medical Practice Act" (a model law adopted in whole or in part by most states), "giving false, fraudulent or deceptive testimony while serving as an expert witness" constitutes unprofessional conduct, which is grounds for professional discipline. Courts have upheld such discipline by medical boards for expert testimony.

Out-of-State Experts: State medical boards may have special requirements for out-of-state expert witnesses, including licensure in the state for forensic activity. If such requirements are not followed, the out-of-state expert could be accused of practicing without a license, which could result in civil and criminal penalties, as well as possibly voiding the malpractice insurance coverage.

State Law Requirements: Some states have begun regulating by statute the standards for expert witnesses. For example, the Mississippi Medical Board has created regulations covering licensure and qualification requirements, professional standards, and sanctions. The Mississippi regulations apply to all expert witnesses—regardless of whether or not the expert witness is licensed in the state.

Peer Review and Discipline by Professional Organizations

Professional associations are engaging in more peer review of and discipline for expert testimony, perhaps due in part to witness immunity.

AMA: Under AMA Policy H-265.933, Peer Review of Medical Expert Witness Testimony (2000), physician expert witness testimony is considered the practice of medicine and all expert witness testimony should be subject to peer review. Additionally, the AMA's Ethics Opinion 9.07 Medical Testimony (2004) states the following: "Organized medicine, including state and specialty societies, and medical licensing boards can help maintain high standards for medical witnesses by assessing claims of false or misleading testimony and issuing disciplinary sanctions as appropriate."

Specialty Societies: The ability of a professional organization to promulgate ethical policies for expert witnesses and discipline its members for improper expert witness testimony has been upheld by the courts. The AAN has developed Qualifications and Guidelines for the Physician Expert Witness. These guidelines include a section on the elements of medical expert testimony (evaluation, opinion, and communication of the opinion), a section on qualifications, and a section on the expert's conduct, such as maintaining confidentiality, not providing expert witness services for a contingency fee, and providing opinions based on scientific data.

State Medical Associations: State medical associations may have programs to review complaints about expert testimony by their members, and also may refer cases to the state medical board for review.

Ways to Reduce Professional Liability Risk as an Expert Witness

  • Understand and comply with the expectations of state medical boards (including the medical board where testimony is to be provided), such as standards for expert testimony, licensure requirements for out-of-state witnesses, etc.

  • Understand the expectations of state medical associations, such as guidelines for testimony, peer review, etc.

  • Understand the expectations of specialty societies, such as guidelines for testimony, peer review, etc.

  • Prepare adequately for the case, and address weaknesses in the case with the retaining attorney.

  • Confirm expert witness activities are covered within the scope of your professional liability insurance policy.

Author Disclosure

Within the past 24 months, Ms. Vanderpool received personal compensation for her work as a full-time employee of Professional Risk Management Services Inc (PRMS). In the same period, she served as editor of a PRMS risk management newsletter, Rx for Risk.