CONNECTICUT - EXPERT WITNESS (Physician as)

January 1, 2008

State laws and regulations that affect your medical practice

1. How much of an expert witness' time will be compensated?

The Court shall determine a reasonable fee when any practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, psychologist, or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition. This fee may, in the court's discretion, be awarded to the prevailing party in a civil action. There has been a split of authority in the Connecticut Superior Court as to whether expert preparation time should be included in the costs awarded in a civil action. In a recent unpublished case, Kelo v. City of New London, 2006 WL 1738571 (Conn. Super.), the Court awarded reasonable witness fees to the prevailing party, including testimony preparation time.

C.G.S.A.§ 52-260 (f)

(a) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who: (1) is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.

(b) If the defendant health care provider is certified by the appropriate American board as a specialist, a "similar health care provider" is one who: (1) is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider."

( c ) Any health care provider may testify as an expert in any action if he (1) is a "similar health care provider" or (2) is not a similar health care provider but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to a claim of negligence against a health care provider.

C.G.S.A. § 52-184c

3. What type of expert testimony is acceptable in court?

A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge. The expert witness' testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. Crucial to this inquiry is a determination that the specialized knowledge upon which the expert's testimony is based goes beyond the common knowledge and comprehension of the average juror.

CT R REV § 7-2

4. Are there any prohibitions on payment of fees to expert witnesses?

No attorney may assist an expert witness to either testify falsely or offer an inducement to a witness that is prohibited by law. In commentary to this rule, it is noted that it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. However, this commentary further notes that the common law rule in most jurisdictions (and, by inference, Connecticut), is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee (i.e., a stake in the outcome of the litigation, as an expert opinion should be neutral and not subject to temptation to share in the recovery).

CT R RPC Rule 3.4 & Commentary following the rule

5. What are the general recommended guidelines for physicians who act as expert witnesses?

The American College of Surgeons has adopted the following recommended qualifications:

•The physician expert witness must have a current, valid and unrestricted license to practice medicine in the state in which he or she practices.

•The physician expert witness should be a diplomate of or have status with a specialty board recognized by the American Board of Medical Specialties, as well as be qualified by experience or demonstrated competence in the subject of the case.

•The specialty of the physician expert witness should be appropriate to the subject matter in the case.

•The physician expert witness who provides testimony for a plaintiff or a defendant in a case involving a specific surgical procedure (or procedures) should hold current privileges to perform those same procedures in a hospital that is accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or the American Osteopathic Association (AOA).

•The physician expert witness should be familiar with the standard of care provided at the time of the alleged occurrence and should be actively involved in the clinical practice of the specialty or the subject matter of the case during the time the testimony or opinion is provided.

•The physician expert witness should be able to demonstrate evidence of continuing medical education relevant to the specialty or the subject matter of the case.

•The physician expert witness should be prepared to document the percentage of time that is involved in serving as an expert witness. In addition, the physician expert witness should be willing to disclose the amount of fees or compensation obtained for such activities and the total number of times he or she has testified for the plaintiff or defendant.

The American College of Surgeons has also adopted the following recommended guidelines for behavior:

•Physicians have an obligation to testify in court as expert witnesses when appropriate. Physician expert witnesses are expected to be impartial and should not adopt a position as an advocate or partisan in the legal proceedings.

•The physician expert witness should review all the relevant medical information in the case and testify as to its content fairly, honestly, and in a balanced manner. In addition, the physician expert witness may be called upon to draw an inference or an opinion based on the facts of the case. In doing so, the physician expert witness should apply the same standards of fairness and honesty.

•The physician expert witness should be prepared to distinguish between actual negligence (substandard medical care that results in harm) and an unfortunate medical outcome (recognized complications occurring as a result of medical uncertainty).

•The physician expert witness should review the standards of practice prevailing at the time and under the circumstances of the alleged occurrence.

•The physician expert witness should be prepared to state the basis of his or her testimony or opinion and whether it is based on personal experience, specific clinical references, evidence-based guidelines, or a generally accepted opinion in the specialty. The physician expert witness should be prepared to discuss important alternate methods and views.

•Compensation of the physician expert witness should be reasonable and commensurate with the time and effort given to preparing for deposition and court appearance. It is unethical for a physician expert witness to link compensation to the outcome of a case.

•The physician expert witness is ethically and legally obligated to tell the truth. Transcripts of depositions and courtroom testimony are public records, and subject to independent peer reviews. Moreover, the physician expert witness should willingly provide transcripts and other documents pertaining to the expert testimony to independent peer review if requested by his or her professional organization. The physician expert witness should be aware that failure to provide truthful testimony exposes the physician expert witness to criminal prosecution for perjury, civil suits for negligence, and revocation or suspension for his or her professional license.

"Statement on the Physician Acting as an Expert Witness," by The American College of Surgeons

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

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