MASSACHUSETTS - EXPERT WITNESS (Physician As)

1. Are there any prohibitions regarding the fees physicians may charge for their services as expert witnesses?

Yes. An expert witness may not collect compensation which by agreement is contingent on the outcome of a controversy. This creates a perception that the expert is being bought and sold or that the witness is improperly biased.

S.J.C. Rule 3.07, Code of Prof. Resp., DR 7-109( C ), ( C )(3)

Expert testimony is required to establish the applicable standard of care in a malpractice action. In determining whether an expert is qualified to testify regarding the proper standard of care of a physician, the crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony, which ensures that the expert has sufficient knowledge of the practices of other physicians to assert that the average qualified practitioner would, or would not, take a particular course of action in the relevant circumstances.

Palandjian v. Foster, 842 N.E. 2d 916 (2006)

3. 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.