Expert witness guidelines for physicians

March 10, 2011

If you're like most physicians, you don't devote significant time to providing expert testimony. Some guidelines apply to all depositions, so consider these points if you're called on to provide expert testimony.

If you're like most physicians, you don't devote significant time to providing expert testimony. And even if you recognize the importance of expert testimony, you may not be accustomed to the adversarial nature of the proceedings or the need not only to make a case but also to make it persuasively.

Your authority (at least since your residency) usually stems from wearing a white coat, not marshaling evidence. Further, the English language is elastic. Even medical terms that give that aura of precision may need clarification in a courtroom. Additionally, rules and guidelines applicable to depositions may seem artificial, although they are important.

Some guidelines apply to all depositions, however, so if you're called on to provide expert testimony, consider these points:

• Substance. The substance of the testimony is one of the overriding features of depositions. It usually involves determining whether treatment was proper and met the legal standard of care or whether an act or omission caused or contributed to an adverse outcome.

Defining the standard may be difficult, however. Many physicians have heard of the standard of care, but this term often is defined in an abstract way. Some doctors view the standard of care as adherence to a guideline, although most guidelines state that they are not standards of care. Some physicians view the standard of care as a uniform approach to a problem, although problems may be addressed by different yet equally successful approaches.

The legal definition of standard of care, alas, is defined by another concept, that is, "care that is reasonable under the circumstances of the case." This concept, as is the standard of care definition, is derived from various cases that define proper care. Although vague, the legal definition nevertheless will be an easier one for you to use as an expert witness, because you simply have to determine the reasons for or against some course of treatment.

• Credibility. The credibility of the testimony is the other overriding feature of depositions. If you, as an expert witness, are sloppy, do not have all the pertinent facts, do not know the facts well, or lack attention to detail, you may not be capable of persuading a jury to reach a particular result.

Standard types of deposition questions may require different types of responses. Perhaps you assume that all questions call for an answer of "yes," "no," or "I don't know." You can answer some questions in one of those ways, but many questions-for instance, those seeking the reasons for a diagnosis, the reasons that conditions were included in a differential diagnosis, the reasons that a specific treatment was recommended, or the reasons that adverse results occurred-obviously require explanations. Anticipate such questions so you can formulate complete but concisely phrased explanations.

• Strength of opinions. Another common issue related to the deposition of expert witnesses involves the strength of opinions. In this regard, rules of evidence make a simple but important distinction between "probable" and "possible."

The difficulty with this distinction is that many shades of gray exist. Some people say that something is "very possible," meaning likely. Others use terms such as "probable but not definite," thereby diluting the meaning of the word probable.

In general, if something is "possible," judges are likely to view those facts or opinions as speculative and not admissible in evidence. Opinions or facts that are "probable," however, are likely to be admissible into evidence, even if some lack of certainty or room for doubt exists.